Walton, Michael --- "The New South Wales Industrial Relations System: 1998 to the Workplace Relations Amendment (WorkChoices) Act 2005" [2006] UNSWLawJl 5; (2006) 29(1) UNSW Law Journal 47
[*] This paper is based on a speech given to a symposium held by the School of Business, University of Sydney, on 26 August 2005 to discuss developments in industrial law in New South Wales since 1998 including the anticipated significant federal changes to industrial law. Since then, the Workplace Relations Amendment (Work Choices) Act 2005 has been passed by the federal Parliament and came into full effect on 27 March 2006. Further, a challenge has been brought in the High Court to its constitutional validity by most of the states and territories and a number of union organisations. This has been listed for hearing in May 2006: State of New South Wales & Ors v Commonwealth (‘Workplace Relations Challenge ’) (High Court matter numbers S592 of 2005, P66 of 2005, B5 of 2006, A3 of 2006, B6 of 2006, S50 of 2006 and M21 of 2006).
[1] Justice Michael Walton, ‘The Industrial System in New South Wales: 1998 to the Reform Proposals of 2005’ (Speech delivered at the Symposium of the Business and Labour History Group, University of Sydney, 26 August 2006).
[2] From 9 December 2005, following the Industrial Relations Amendment Act 2005 (NSW), the Industrial
Relations Commission in Court Session is to be known as the Industrial Court of New South Wales.
[3] John Hendy and Michael Walton, ‘An Individual Right to Union Representation in International Law’ (1997) 26 Industrial Law Journal 205, 206.
[4] [2006] NSWIRComm 67, [24]-[25].
[5] Industrial Relations Act 1996 (NSW) s 50.
[6] State Wage Case 2006 [2006] NSWIRComm 67, 208.
[7] State Wage Case 1999 (NSW) (1999) 88 IR 363, 389; Re Pastoral Industry (State) Award [2001] NSWIRComm 27; (2001) 104 IR 168, 172–179 (where the Full Bench noted that the difference between the two schemes was ‘stark’ and that this Commission's ‘award making powers under the Act are, at this point in time, considerably broader than those of the AIRC pursuant to the Industrial Relations Act 1996 (NSW) and are substantially directed to considerably different purposes’); State Wage Case 2001 (2001) 104 IR 438, [69]–[70].
[8] See, eg, State Wage Case [2006] NSWIRComm 67; Re Pastoral Industry (State) Award (2000) 104 IR 168.
[9] Re Motels, Accommodation & Resorts (State) Award [2005] NSWIRComm 248.
[10] See, eg, Industrial Relations Act 1996 (NSW) pt 9 ch 3.
[11] Andrew Stewart, ‘Labour Market Reform in a Federal System: Making the Best of a Flawed Framework’ in The Productivity Commission, Productive Reform in a Federal System, Roundtable Proceedings (2006) 175.
[13] Industrial Relations Act 1996 (NSW) s 3(a).
[14] A title which, I must say, is unfortunate as it seems to connect with the philosophy of economism.
[15] Unless converted earlier into individual Australian Workplace Agreements.
[16] For example notifications may be given in writing, by fax and by telephone and listings may occur at the Commission's own initiative.
[17] Conciliation is reached within 21 days of filing and 90.3 per cent of matters are settled at this stage (or shortly thereafter). The remaining 9.7 per cent of matters which continue to arbitration are centrally listed in accordance with Practice Direction 17 (made pursuant to Rule 89 of the Industrial Relations Commission Rules 1996).
[18] It has been estimated that less than 30 per cent of applications in the Commission are filed, and therefore prosecuted, by lawyers.
[19] Ian Cummin (Speech delivered at the Swearing in Ceremony of John Stanton, Sydney, 16 June 2005).
[20] Bluescope Steel Limited - Springhill and CRM Employees Award 2006 and Bluescope Steel (AIS) Limited - Port Kembla Steel Works Employees Award 2006 [2006] NSWIRComm 3.
[22] Rowan Williams, Lost Icons: Reflections on Cultural Bereavement (2002).
[23] ABC Radio National, ‘Faith, Works and Industrial Relations’, The Religion Report, 17 August 2005.
[24] Commonwealth, Parliamentary Debates, House of Representatives, 27 March 2006, 5 (John Howard, Prime Minister of Australia).
[25] Or solely punitive measures under industrial laws: see, eg, the possible removal of the discretion of the Australian Industrial Relations Commission where orders are sought under s 496 of the Workplace Relations Act 1996 (Cth).
[26] That is, limited both as to the scope and content of the remedy available and its accessibility in a court-based system, which may expose the applicant to costs orders in limited circumstances.
[27] Work Choices Act s 643(10).
[28] Ibid s 643(7).
[29] Ibid s 643(8), (9).
[30] See, eg, Printing and Kindred Industries Union v Vista Paper Products Pty Limited (1992) 45 IR 268 and the decision of the High Court of Australia in Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 67 ALJR 604.
[31] Beahan v Bush Boake Allen Australia (1999) 47 NSWLR 648, 675.
[32] Termination of Employment Convention, 22 June 1982, ILO Convention C 158 (entered into force 23 November 1985).
[33] In this respect, see, eg, the requirements for approval of Workplace Agreements (s 340), the limited scope of protective award conditions and conditions for their removal or alteration (s 354), the limited scope of prohibited content conditions for agreements (see s 356), the General Regulations for the Workplace Relations Act 1996 (Cth) (Div 7.1) and the removal or modification of former ss 170 VPA and 170 VPB of the Workplace Relations Act 1996 (Cth).
[34] [2006] NSWIRComm 52, [234]–[236].
[35] WorkChoices Act pt 13, div 3.
[36] WorkChoices Act pt 13, div 4.
[37] See Workplace Relations Act 1996 (Cth) ss 701, 706.
[38] WorkChoices Act s 711.
[39] See, eg, ss 99, 170MW, 170MWA, 170MX.
[40] Workplace Relations Act 1996 (Cth) pt 10, div 5.
[41] See Workplace Relations Act 1996 (Cth) sch 6, pt 3, div 2, cl 29.
[42] [2006] NSWIRComm 52, [271]–[272].
[43] See especially the report of Dr Chris Briggs of the University of Sydney that there has been a dramatic rise in lockouts since the introduction of the Workplace Relations Act 1996 (Cth): that is, after the reduction of dispute resolution mechanisms under that Act: Nick O’Malley, ‘Staff Lockouts Rise Tenfold in Decade’, Sydney Morning Herald (Sydney), 15 August 2005, 5.
[44] See the Workplace Relations Act 1996 (Cth) ss 23, 176.
[45] [2006] NSWIRComm 67, [41]–[44].
[46] [2004] NSWIRComm 114; (2004) 133 IR 254, [43 1]–[432].
[47] Misha Schubert, ‘New Body Tries the ‘Great Balancing Act’ Over Wages’, The Age (Melbourne), 6 April 2006, 4.
[48] Adam Bandt, ‘State Waxes, Rights Wane’, The Age (Melbourne), 4 April 2006, 15.
[49] Ron McCallum, ‘Plunder Downunder: Transplanting the Anglo-American Labor Law Model to Australia’ (2005) 26 Comparative Labor Law & Policy Journal 381, 397-398.
[50] Ross Gittins, ‘Deregulated US Job Market Meaner, But Not Better’, Sydney Morning Herald (Sydney), 13 February 2006, 21.
[51] Ian Harper (Speech delivered at Business Council of Australia Annual Dinner, Melbourne, 16 February 2006).
[52] Gittins, above n 50.53 Industrial Relations Act 1996 (NSW) s 19.
[54] See Re Public Hospital Nurses (State) Award [2002] NSWIRComm 100; (2002) 115 IR 183; Re Public Hospital Nurses (State) Award (2002) 118 IR 336.
[55] Re Crown Employees’ (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202; (2003) 129 IR 135; (2004) 141 IR 166.
[56] Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) (State) Award 2004 (2004) 134 IR 71.
[57] Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274; (2001) 113 IR 119.
[58] Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458.
[59] Re Nursing Homes, & Nurses’ (State) Award and Others Award (2001) 110 IR 433.
[60] Health Employees Pharmacists (State) Award and Others [2003] NSWIRComm 453; (2003) 132 IR 244.
[61] Re Operational Ambulance Oficers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384.
[62] Re Transport Industry (State) Award (1996) 95 IR 126, (2002) 120 IR 151.
[63] Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIRComm 335; Employers First v NSW/ACT Independent Education Union (2002) 115 IR 8.
[64] See, eg, Re State Equal Pay Case 1973 AR (NSW) 425.
[65] Re Equal Remuneration Principle (2000) 97 IR Comm 177.
[66] Re Crown Librarians, Library Oficers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle (2002) 111 IR 48.
[68] [2006] NSWIRComm 67, [45], [52].
[71] BHP Billiton v Australian Workers Union, New South Wales [2002] NSWIRComm 378.
[72] See generally Re Broken Hill Commerce and Industry Consent Award (No. 2) [2002] NSWIRComm 309; (2002) 120 IR 429, 436-437; BHP Steel (AIS) Pty Limited v Australian Workers Union, New South Wales and Others (2003) 125 IR 216.
[73] See, eg, BHP Steel (AIS) Pty Limited v Australian Workers’ Union, New South Wales [2003] NSWIRComm 124; (2003) 125 IR 207.
[74] See, eg, BlueScope Steel (AIS) Pty Limited v Australian Workers Union, New South Wales (No. 2) [2004] NSWIRComm 145; (2004) 136 IR 48; BlueScope Steel Ltd (formerly BHP Steel Ltd) v Australian Workers' Union, New South Wales (No. 2) (2005) 141 IR 329.
[75] See, eg, BlueScope Steel (AIS) Pty Limited - Port Kembla Steelworks Employees Award (2004) 137 IR 363.
[76] Cummin, above n 19.
[77] Australian Workers Union, NSW (on behalf of Stojanovski) v Bluescope Steel (AIS) Pty Ltd (2004) 137 IR 211.
[79] Re an Industrial Dispute between Unions NSW and BlueScope Steel Ltd, Matter no. IRC 6774 of 2005.
[80] Samantha Maiden, ‘Ruddock Outlines Red-tape Attack’, The Australian (Sydney), 20 March 2006, 5.
[82] [1994] NSWIRComm 230; (1995) 60 IR 149.
[84] WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in the Right of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 (‘Police Service of New South Wales (No 2)’); O’Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 74; (2003) 125 IR 361; The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57; South Sydney Junior Rugby League Club Limited v WorkCover Authority (Inspector Bestre) (2005) 142 IR 373.
[85] Police Service of New South Wales (No 2) (2001) 104 IR 268; South Sydney Junior Rugby League Club Limited v WorkCover Authority (Inspector Bestre) (2005) 142 IR 373.
[86] O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) IR 361.
[87] [2004] NSWIRComm 297; (2004) 137 IR 253.
[88] Ibid [100].
[89] (2003) 123 IR 121.
[90] [1999] NSWIRComm 343; (1999) 90 IR 464.
[91] [2001] NSWIRComm 106; (2001) 105 IR 181.
[92] [1998] HCA 57; (1998) 194 CLR 610.
[93] (1999) 95 IR 383.
[94] WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd and Another (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163; Inspector Sharpin v A-Team Concrete (Aust) Pty Ltd and A-Team Concrete Pty (2004) IR 182; Inspector Green (WorkCover) v Metropolitan Administrative Services Pty Ltd , Inspector Green (WorkCover) v Metropolitan Demolitions and Recycling Pty Ltd, Inspector Green (WorkCover) v Giannikouris [2005] NSWIRComm 12.
[95] (1999) 95 IR 383.
[96] (2000) 49 NSWLR 610.
[97] Department of Mineral Resources (NSW) (McKensey) v Kembla Coal & Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8, 27.
[99] Ibid.
[100] [2003] NSWIRComm 74; (2003) 125 IR 361 (which was upheld on appeal in The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198).