Legal expert casts doubt on Bluecard appeal chances

By: Jason Whittaker

Despite the findings of the Endeavour Coal case, an inconsistency in the Federal Workplace Relations Act means the NSW Award

Despite the findings of the Endeavour Coal case, an inconsistency in the Federal Workplace Relations Act means the NSW Award which brought in the regulatory burdensome Bluecard may still apply.

As reported by ATN, NatRoad was considering appealing the Mutual Responsibility Award based on the decision made in the Endeavour Coal case.

The Award successfully appealed by Endeavour Coal dealt with long service leave while the Transport Industry – Mutual Responsibility for Road Safety (State) Award and Contract Determination deals with occupational health and safety.

But discussions with Jonathon Hadley, an industrial relations lawyer at firm Ebsworth and Ebsworth, casts doubt on whether an appeal would be successful.

According to Hadley, section 16(2) of the Workplace Relations Act lists a number of provisions such as long-service leave and OH&S that are to be referred to state legislation.

However, section 17, which outlines what Federal Awards are subject to state and territory laws, mentions OH&S but excludes long-service leave, revealing a contradiction in the Act.

"In contrast to long service leave the Workplace Relations Act consistently says in both sections 16 and 17 that occupational health and safety is to be included in the state jurisdiction," Hadley says.

In appealing the long service leave Award, Endeavour Coal exploited this inconsistency. It based its argument on the fact the NSW Industrial Relations Court could not hear matters regarding long service leave because it did not fall under state jurisdiction.

ATN understands this would not happen in cases involving occupational health and safety, meaning the Mutual Responsibility Award would hold up before the Federal Court.

Hadley says it is "more probable for the Federal Court to rule in favour of the states regarding occupational, health and safety as opposed to long service."

"Section 17 of the Workplace Relations Act ensures that occupational health and safety Š and other prescribed matters fall under state jurisdiction," Hadley says.

"However, long service leave in the Workplace Relations Act is excluded in section 17 as being part of state law.²

The NSW Industrial Relations Commission passed the Mutual Responsibility Award 12 months ago.

NatRoad has maintained concerns about the Award due to the regulatory measures it places on businesses and employees.

The Award requires long distance truck drivers to undergo Bluecard-accredited occupational health and safety training as well as compulsory union involvement in drug and alcohol training.

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