High Court frees up IRCs from state govt limits
A High Court decision finding a state industrial relations commission has jurisdiction to consider whether a state government's legislative changes breach public sector enterprise agreements (EAs) could have significant ramifications for the other states. According to unions, the judgment enforces the independence of commissions to determine whether state legislative changes, such as the recent NSW wage cap legislation, are in breach of an agreement. While the cmn could not repeal the legislation if it found the changes to be in breach, it could suggest alternative remedies. The decision published this week upheld the South Australia Public Service Association (SA PSA)'s appeal challenging the SA IRC's refusal to hear the union's application over the then-treasurer's legislative changes in September 2010.
Those changes reduced public sector leave and tenure conditions despite the govt having agreed to protect those conditions in an enterprise agreement several months earlier. The IRC determined it did not have jurisdiction to hear the matter as it was not an industrial dispute. The union appealed the decision to the SA Supreme Court, arguing the IRC had made a wrongful refusal to exercise its jurisdiction. The Supreme Court determined the matter needed to be decided by the High Court. State governments from SA, WA, Tas, Queensland and Victoria intervened to oppose the High Court appeal.
The Commonwealth intervened in support of the PSA. The High Court - Chief Justice Robert French, Justices William Gummow, Ken Hayne, Dyson Heydon, Susan Crennan, Susan Kiefel and Virginia Bell - found the existence of an industrial dispute was a condition of the IRC's jurisdiction. Once a party made an application to the IRC, "the cmn is not at liberty to refuse to deal with the matter, but, rather, has a duty to determine any jurisdictional facts upon which the attraction of its jurisdiction depends". "When the cmn decides erroneously not to proceed upon an application on the footing there is no industrial dispute as required by s26 of the FW Act (SA), the cmn has erred in the determination of its jurisdiction, and has exceeded its jurisdiction in doing so," the judges said. The court found SA review provisions under s206 of the Fair Work Act (SA) preserved the Supreme Court's jurisdiction with respect to IRC jurisdictional errors. It referred the matter back to the Supreme Court which is expected to refer the matter back to the SA IRC for hearing.
Since the September 2010 legislative changes, the SA govt has reinstated tenure and leave loading but not long service leave conditions. The High Court ordered the SA govt to pay the PSA's costs for the High Court appeal. (PSA SA v IRC SA and Ors , HCA 25, 11/7/2012)