BREAKING NEWS: Bluecard legality in doubt following Court case

By: Graham Gardiner

Doubts have been raised over the legality of a New South Wales industrial Award, which has seen the introduction of

Doubts have been raised over the legality of a New South Wales industrial Award, which has seen the introduction of the controversial Bluecard for road transport operators along with other provisions employer groups have argued are an unnecessary burden.

NatRoad Chief Executive Bernie Belacic says his organisation is questioning whether the 12-month old Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination approved by the State’s Industrial Relations Commission (IRC) is lawful.

Belacic will attend a committee meeting on February 4 to determine NatRoad’s position in regards to the Award.

Doubts over its legality have been raised by a recent Federal Court case involving Endeavour Coal and the Construction, Forestry, Mining and Energy Union (CFMEU).

The Federal Court heard the NSW IRC made an Award regarding long-service leave in the coal industry, which was proposed by the CFMEU. However, in an appeal the full bench of the Court ruled the IRC had no power to make such an Award.

Section 16 of the federal Workplace Relations Act excludes the application of certain state and territory laws. But it also outlines laws not excluded, which states and territories are free to pass. One among them is long-service leave. However, the Federal Court concluded the non-excluded provision only conferred such power to governments, not commissions.

As such, Belacic says the Mutual Responsibility for Road Safety (State) Award may not apply because it deals with occupational health and safety (OH&S), which is a non-excluded law under the Workplace Relations Act, and was also passed by a commission.

"I think in terms of that particular decision, I suggest it would strengthen any case regarding defending a mutual responsibility claim," he says.

The only way to test the legality of the Award is for a transport operator to be hauled before a court charged with breaching the Award’s conditions.

"What is required is a direct appellant to front," Belacic says.

"Generally speaking, the person will probably need to be prosecuted or would need to be involved in the case."

But Dan Houlihan, director of IR consultancy firm First IR, believes the Transport Workers Union (TWU) – which applied for the Award in the first place – will not bother attempting to prosecute companies that breach the Award.

"I don’t see how that would suit the TWU’s interests," he says.

"I think in the decision of Endeavour Coal, it is really clear in that you would have good grounds for arguing that the Award wouldn’t apply to you."

Houlihan says the decision shows that only state laws, not Awards, may override the Workplace Relations Act.

"The Federal Court has clearly found that for a law to be dealing with a matter, it needs to be a law," he says.

"The Mutual Responsibility Award is not a law; it was not made by a court, it was made by an industrial relations tribunal."

Despite this, NatRoad is treading carefully.

Belacic says there are a number of issues that need to be considered. He says the Endeavour Coal case dealt specifically with long-service leave, meaning the Federal Court decision may not have set a precedent for overturning an Award dealing with health and safety.

"The reality is a court has not ruled specifically on that [health and safety]," he says.

Furthermore, there may be complications due to the differences between long-service leave and OH&S. Belacic says long service leave, unlike health and safety, is an entitlement expressly covered by the Workplace Relations Act.

"The mutual responsibility, one could argue, goes either way," he says.

"In particular, the IRC is saying ‘well, wait a minute, in NSW there is a special provision in the Act which says OH&S is excluded’."

There is also the possibility of the Award being passed into law, according to Houlihan.

"The big danger is if the Mutual Responsibility Award gets pulled up in some sort of code of practice and handed through the OH&S regulations," he says.

"That’s got the effect of making it into law.

NatRoad has maintained concerns about the Award, particularly the burden it places on employers and employees.

Under the Award, there is a requirement for long-distance truck drivers to undergo Bluecard-accredited OH&S training and for the development of safe driving plans that declare driver remuneration. The instrument also mandates union involvement in drug and alcohol training, effectively ruling out free choice.

The Award was due to be reviewed within 12 months of it taking effect. However, Belacic says the review has not been forthcoming.

"The Commission did say that they would have a look at certain aspects of the Award again in 12 months time but I am unaware of any of that occurring," he says.

"And to the extent that that actually changes the award, I am a little bit sceptical."

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