Employers have lost a bid to remove OHS provisions from modern awards. FWA’s modern awards review full bench has dismissed arguments put by the Master Builders Association (MBA) and backed in part by the Ai Group and other employer groups about health and safety. They claimed Division 2 of Part 1-3 of the FW Act “has the effect that provisions which directly regulate health and safety may not lawfully be included in modern awards”. The employer bodies argued workplace safety was already addressed in national and state OHS legislation, with its inclusion in modern awards an unnecessary and burdensome impost on employers. However, the bench – Senior Deputy Presidents Ian Watson and Jonathan Hamberger and Commissioner Helen Cargill – disagreed. “It is clear that Div 2 of Part 1-3 of the Act does not deal with the lawfulness of the content in modern awards or any other instruments made under the Act. Its purpose is to provide interaction rules to operate in conjunction with ss109 and 122 of the Constitution, with s26 providing an express statement of an intention to cover a field and s27 setting out the exceptions to that exclusivity set out in s26. Sections 26 to 30 are not directed to nor have the effect of enlarging or confining the matters which may lawfully be contained in a modern award,” the bench said. The validity of OHS provisions in awards was first raised by the MBA in a submission to SDP Watson seeking to vary the Building and Construction General On-site Award 2010. Recognising the matter had “wider” implications beyond the on-site award, SDP Watson successfully asked for it to be determined by a full bench. (Modern Awards Review: MBA Ltd, FWAFB1080, 12/12/12)
Source: The full version of this article was first published in Workforce, 13 December 2012.