Australia: New South Wales´ Injured Workers´ Provisions Survive Work Choices

The amendments to the federal Workplace Relations Act 1996 ("WR Act") that took effect from 27 March this year were, in part, designed to create a national system of workplace relations ("Work Choices") by excluding the operation of state or territorial industrial laws. However, there are some notable exceptions to this broad exclusion. Work Choices does not exclude state or territory laws that deal with occupational, health and safety, workers' compensation and anti-discrimination.

Moreover, with the commencement of Work Choices there was some uncertainty as to whether the so-called injured workers' provisions found under Part 7 of the New South Wales Industrial Relations Act 1996 (NSW) would survive, with the question turning on whether those provisions were a law dealing with workers' compensation or were necessarily of an "industrial" flavour and therefore excluded from operation by Work Choices.

However, in a recent decision of the New South Wales Industrial Relations Commission ("NSW IRC") it has found that the injured workers provisions found under the NSW Act are a law dealing with workers' compensation and, therefore, are specifically preserved by Work Choices (Australasian Meat Industry Employees Union, Newcastle and Northern Branch (on b/h of B Fisher) and Inghams Enterprises Pty Ltd [2006] NSWIRComm 202).

The Australasian Meat Industry Employees Union, Newcastle and Northern Branch made an application pursuant to Part 7 of the NSW Act seeking that one of its members, Mr Fisher, be reinstated with Inghams Enterprises Pty Ltd.

Under Part 7 of the NSW Act, an "injured employee" is afforded certain protections in relation to termination of employment. Notably, the NSW Act inter alia makes it an offence for an employer to dismiss an "injured employee" within six months after the employee first becomes unfit for employment as a result of the injury because he or she is not fit for employment as a result of that injury. An "injured employee" includes an employee whom has sustained a compensable injury for the purposes of workers' compensation. A dismissed employee in these circumstances can make an application for reinstatement to the NSW IRC.

Inghams objected to the Union's application inter alia on the ground the employee was excluded from making a valid application to the NSW IRC as the injured workers' provisions had no operative effect and were excluded by virtue of Work Choices.

The NSW IRC rejected this argument by Inghams and held that Part 7 of the NSW Act is a law dealing with workers' compensation, and therefore, is specifically preserved by Work Choices. The NSW IRC came to this conclusion, notwithstanding that there are provisions dealing with the termination of employment under the WR Act.

In this respect, Harrison DP stated:

"A significant distinction between the provisions of Pt 7 of Ch 2 of the NSW Act and the provisions of the [WR Act] is that provisions of the NSW Act arise from and are connected to injury as defined, whilst the [WR Act] has its primary focus on termination of employment".

Accordingly, the NSW IRC concluded that it had the jurisdiction to deal with the matter and the employer was therefore required to prove that the termination of employment was not as a result of the injury.

A hearing into the substantive application is yet to be set down.

In light of the decision in Fisher New South Wales employers should continue to have regard to the possible application of the injured workers' provisions and, in particular, when assessing whether and when it can terminate the employment of employees who are no longer fit for employment. This is in addition to other considerations, such as compliance with anti-discrimination legislation.

Another recent development of note is that on 18 September 2006, the New South Wales Government released a draft bill which, amongst other things, proposes to amend the Workers Compensation Act 1987 (NSW) so that it mirrors the injured workers' provisions under Part 7 of the NSW Act. The Bill seeks inter alia to provide greater certainty in relation to the continuing application of the injured workers' provisions under the NSW Act.

Similarly, Queensland has recently sought to amend its Workers' Compensation and Rehabilitation Act 2003 (Qld) so as incorporate certain protections for injured workers from dismissal.

At the time of writing this article, no other states or territories have introduced similar amendments to their workers' compensation laws.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.