Commission’s powers to deal with inconsistencies between Enterprise Agreements and State Legislation Commission’s powers to deal with inconsistencies between Enterprise Agreements and State Legislation

Commission’s powers to deal with inconsistencies between Enterprise Agreements and State Legislation

22 June 2018 | Employer's Liability

This case concerns a dispute arising as a result of conflicting provisions in an Enterprise Agreement and State legislation and the Fair Work Commission's powers to determine its consistency.

In Issue

  • Whether the Fair Work Commission has jurisdiction to deal with disputes arising out of conflicting provisions in Enterprise Agreements and State legislation.

The Background

The Australian Rail, Tram and Bus Industry Union (Union) made an application to the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to a dispute with Pacific National Queensland Coal Pty Ltd (Pacific National) arising under the Pacific National Queensland Coal Enterprise Agreement 2014 (Agreement).

The Union argued the operation of a provision in the Agreement relating to rostering the length of shifts (which set a maximum of 12 hours per shift), was in contravention of the Rail Safety National Law Regulations 2012 (Regulations).

Pacific National argued that the Commission did not have jurisdiction to determine matters which did not arise under the Agreement, particularly in circumstances where s.29 of the Act states that an enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.

The Issues

The Union argued that the rostering provision in the Agreement was inconsistent with the Regulations.

The Commission was required to consider whether the dispute was a matter arising under the Agreement and which enlivened s.739 of the Act. Section 739 can be used if an industrial agreement allows the Commission to deal with its disputes. However, it prevents the Commission from making any decisions that are inconsistent with the Act.

Pacific National argued that the dispute did not arise under the Agreement. It also argued that if the Commission was to consider the Union’s application it would have to determine whether there was an inconsistency between the Regulations and the Agreement which would involve an exercise of s.29 of the Act - which the Commission was not empowered to do.

The Decision 

While the Commission acknowledged that the Act does not allow it to determine inconsistencies between State legislation and Enterprise Agreements and that s.29 clearly states that Enterprise Agreements prevail over inconsistent state or territory laws, it found that there was an exception in respect of “non-excluded matters”, which include matters of occupational health and safety.

On this basis, the Commission found there was a live dispute over the continuation of rostering of solo drivers for 12 hours.

Implications for you

If your employees are covered by an Enterprise Agreement, the terms of that agreement should comply with all relevant State laws and regulations.

To the extent that any inconsistency may exist in relation to occupational health and safety matters, the Commission can exercise its broad powers to make decisions about these matters and override inconsistent provisions in an industrial instrument.

Australian Rail, Tram and Bus Industry Union v Pacific National Queensland Coal Pty Ltd T/A Pacific National [2018] FWC 2458

Adi Kedar

Adi Kedar

Solicitor