The Guardian 9 March, 2005

Blow against AWAs

Mining giant, Newcrest, has lost its bid to use a federal AWA (non-union Australian Workplace Agreement) to deny an employee the right to union representation in a decision that points to a constitutional showdown over industrial relations. Miner Brett Tamatea, from the western NSW town of Orange, is a member of the Mining Division of the CFMEU, but Newcrest refuses to discuss disciplinary action with his union, despite a clause in his AWA that says he can be represented by "... another person at any time during the fair treatment procedure".

Newcrest contended the NSW Industrial Relations Commission had no right to hear Mr Tamatea's objection to a final written warning because federal terms over-rode state law.

But in a frontal challenge to Howard government plans to swallow up state jurisdictions, the full bench of NSW Industrial Relations Court rejected the company's notice of motion, after hearing arguments about the limitations of corporations power in the constitution.

In legal terms, the full bench of the Court is a "court of superior record", giving its judgements Supreme Court weight. It considered CFMEU and NSW government submissions that there were finite constitutional limits on how far the Commonwealth could go in using corporations powers to undermine state laws.

The federal government has given notice of its intention to use the same corporations law to remove protections from millions of Australians whose terms and conditions are state registered.

States, including NSW and Queensland, have already flagged the possibility of a High Court challenge to a hostile federal takeover.

In rejecting Newcrest's submission, the Industrial Relations Court found:

  • federal laws governing AWAs did not prevent the NSW IRC (Industrial Relations Commission) exercising conciliation powers, or issuing recommendations and directions;

  • federal AWAs cannot affect the rights of unions to notify matters to the NSW IRC and to pursue those matters on behalf of members;

  • Mr Tamatea's AWA did not preclude his union from separately initiating action in NSW;

  • that the CFMEU is entitled to have the dispute heard.

    The substantive case, about how far a federal AWA can wind back workers' rights, has been set down for conciliation. CFMEU president Tony Maher said Newcrest's position exposed the "lie" behind AWAs.

    "It shows up all the rhetoric about the right to choose and freedom of choice", Maher said. "Newcrest has demonstrated that AWAs are not about that at all. This case is about their argument that, under an AWA, an individual has no right to choose union representation."

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