NSW Industrial Relations Act victimisation provisions still apply despite Work Choices

By Joe Catanzariti.

Key Points:
A recent decision of the Full Bench of the NSW Industrial Relations Commission has confirmed that the victimisation provisions in the NSW Industrial Relations Act still apply to constitutional corporations, despite Work Choices.

Under section 210 of the Industrial Relations Act 1996 (NSW) ("NSW IR Act"), an employer must not victimise an employee or prospective employee because (among other things) the person makes a complaint about a workplace matter that the person considers is not safe or a risk to health.

Where victimisation has been found to have occurred, the NSW Industrial Relations Commission has very broad powers to provide redress, including ordering the reinstatement or re-employment of an employee and/or ordering the employer to pay any amount of remuneration or benefits lost or forgone by the employee or prospective employee.

As a result of the enactment of the Work Choices amendments to the Federal Workplace Relations Act 1996 (Cth) ("WR Act") in March 2006, however, there was some conjecture as to whether the NSW victimisation provisions continued to operate with respect to constitutional corporations.

As a result of the Work Choices amendments, the WR Act applies to all constitutional corporations, in addition to Commonwealth employers.

Section 16 of the WR Act states that the Act is intended to exclude (among other things) the operation of the State industrial laws (including the NSW IR Act), with the exception of certain "non-excluded matters" (such as superannuation, workers compensation - and relevantly - occupational health and safety).

In September 2006, an employee of Brolrik Pty Limited, trading as Botany Cranes and Forklift Services, Mr Hemsworth, was dismissed from his employment. As a proprietary limited company, Botany Cranes is a constitutional corporation and therefore subject to the WR Act.

The CFMEU, on behalf of Mr Hemsworth, brought a claim under section 210 of the NSW IR Act, alleging that Mr Hemsworth was dismissed for raising matters which he considered were "not safe or a risk to health" (CFMEU (on behalf of Barry Hemsworth) v Brolrik Pty Limited t/as Botany Cranes & Forklift Services [2007] NSWIRComm 205).

Botany Cranes sought to dismiss the proceedings on the grounds that the victimisation provisions in the NSW IR Act were excluded by section 16 of the WR Act. Botany Cranes argued that:

• The WR Act excluded the operation of the NSW IR Act on the basis that the NSW IR Act was inconsistent with the WR Act, and that due to the operation of the Constitution the WR Act prevailed;
• The Commonwealth had passed a specific regulation to allow the operation of analogous provisions contained in the Queensland Industrial Relations Act, but had not done so for NSW, thereby indicating that the Commonwealth intended to exclude the victimisation provisions in the NSW IR Act; and
• The victimisation provisions in the NSW IR Act were not laws with respect to occupational health and safety, but were industrial law provisions, and accordingly were not captured by the exception in section 16 of the WR Act that allowed certain State industrial laws to operate.

The Full Bench of the NSW Industrial Relations Commission found that the victimisation provisions in the NSW IR Act did apply to constitutional corporations. In support of its decision, the Full Bench stated that:

• The victimisation provisions in the NSW IR Act were laws that "dealt with" occupational health and safety, and accordingly fell within the exception for "non-excluded matters" under section 16 of the WR Act;
• The fact that regulations were subsequently issued under the WR Act to allow the Queensland victimisation provisions to operate was not relevant in determining whether the Commonwealth intended to exclude the operation of the victimisation provisions in the NSW IR Act; and
• Accordingly, the victimisation provisions under the WR Act continued to operate with respect to constitutional corporations.

This decision confirms that constitutional corporations with employees based in NSW must ensure that they (and their managers and supervisors), do not victimise employees for raising occupational health and safety issues. Therefore, such conduct could give rise to proceedings in the NSW Industrial Relations Commission, which has very broad powers to reinstate or re-employ dismissed employees and order compensation for lost income and benefits.

In particular, employers should be conscious that these provisions essentially allow a dismissed employee to access an alternative unfair dismissal regime, which does not have any of the exclusions contained in the unfair dismissal provisions of the WR Act (such as the 100 employees or less exclusion, and the exclusion for non-award employees who earn $101,300 or more per annum).

Thanks to James Simpson for his help in writing this article.

For further information, please contact Joe Catanzariti.