Government Takes More Control over Working Conditions

Posted on 31 May 2011

The NSW Government has announced the Industrial Relations Amendment (Public Sector of Employment) Bill 2011.

The purpose of the Bill is to amend the current Industrial Relations Act so that the Industrial Relations Commission is required to give effect to government policy declared by regulations when making orders regarding public sector employment conditions.

As a result of the introduction of Work Choices and more recently the Fair Work Act the Industrial Relations Commission only has powers relating to NSW Public Sector employees. Public sector employees include those employed in the NSW Government Service, the Teaching Service, the NSW Police Force, the NSW Health Service, the service of Parliament and other public sector employees. All other employees including those employed by the Federal Public Sector are now covered by the Fair Work Act. The Fair Work Act sets a number of standards that all employees covered by the Act are entitled to such as annual leave, flexible working arrangements, maximum of weekly hours and so on, known as the National Employment Standards.

As NSW Government Sector employees are not covered by the Fair Work Act they do not have these same statutory entitlements. Rather, the working conditions for NSW Public Sector employees is are governed by the Industrial Relations Act and the relevant awards or agreements that exist in their workplace. It is the role of the NSW Industrial Commission to adjudicate disputes under the Industrial Relations Act and make or change these relevant industrial instruments and therefore the working conditions of NSW public sector employees. The Industrial Relations Commission will still have these powers under the proposed changes however the power now must be exercised with reference to government policy as declared in the regulations.

The effect of the amendment will see Government policy come into play when an Award or Enterprise Agreement is amended or introduced. The policy cannot be overridden by the NSW Industrial Relations Commission and therefore the employees and unions will have no choice but to accept the amended workplace conditions. This could include changes to an employees leave entitlements, salary and other conditions. Effectively, the Government could introduce a policy which changes employee conditions and which the Industrial Relations Commission must implement. The NSW Government is the employer and it is clear that the Bill exacerbates the imbalance of power between the employer and employees.

Many bodies such as the Police Union have expressed concern over this increased power to the NSW Government. The Bill appears to be a violation of the separation of powers doctrine as the NSW Industrial Relations Commission will no longer have the power to enforce and amend awards and agreements using their own discretion.

Of course these concerns are only valid if the NSW Government introduces policies that negatively impact Public Sector employees working conditions. The Bill gives the NSW Government broader powers however it should be noted that these increased powers may also be exercised in a way to improve public sector employment conditions.

We will keep you posted as updates and further commentary comes to light with developments on this issue.