Expansion of the National Industrial Relations System

The Industrial Relations (Commonwealth Powers) Bill 2009 was introduced into NSW Parliament on 25 November 2009. Following a quick vote by both Houses of State Parliament, the Bill was passed on 1 December 2009 and is currently awaiting assent before commencement.

The Bill refers matters dealing with terms and conditions of employment, rights and responsibilities relating to industrial action, termination, freedom of association etc. Certain matters are excluded from the referral and are retained by NSW including superannuation, OH&S and long service leave. More detailed lists of excluded and referred matters are included in the Definitions section (clause 3) of the Bill.

Clause 6 of the Bill excludes certain matters from being referred by NSW, with the result that the following employers/employees will still be subject to NSW industrial relations laws:

• Local government sector employees (which includes employees of local or county councils, wholly-owned subsidiaries or bodies wholly controlled by local or county councils and the Local Government Association of NSW or the Shires Association of NSW);
• Law enforcement officers (meaning police, police cadets or special constables); and
  
• State public sector employees, defined as:
  • A member of a Government Service of NSW, the NSW Health and Teaching services and any other service of the Crown in the right of the State; or
  • An employee of a body established for a public purpose subject to control or direction by a Minister or in which the State has a controlling interest.

Additional exclusions include matters relating to Ministers, Members or Parliament and judicial officers. Importantly however the exclusions do not apply to employees of State owned corporations or subsidiaries.

Unincorporated associations, partnerships and not-for-profit organisation (whether they are incorporated or not) will be subject to the Fair Work Act 2009 (Cth) from the commencement of the Fair Work Amendment (State Referrals and Other Measures) Bill 2009 (Cth).