On 28 February 2006 the Full Bench of the Industrial Relations Commission of New South Wales handed down its decision on the Unions NSW application for a Secure Employment Test Case.

In its decision the Industrial Relations Commission granted the new Secure Employment Test Case standard comprising:

1. an opportunity for casual employees to convert to permanent employment after six months continuous employment; and
2. some provisions setting out Occupational Health and Safety obligations on an employer relating to labour hire workers.

The new model clause will be flowed-on to State awards in March 2006 on an award-by-award basis, as the Commission did not make a general order to vary all awards.

The extent of the application of the casual conversion clause to the Public Sector is unclear at this stage.

It is possible that Public Sector unions may make applications for variation of awards to insert the model clause. The application may take one of two forms, either to insert:

1. the occupational health and safety aspect of the model clause in a form similar to that at Appendix A to this Circular; or
2. the entire model clause including casual conversion.

Should your organisation receive notification of an application (which are to be filed by 4pm 7 March 2006) to insert a Secure Employment Clause into an award covering your employees of your organisation, your response will depend upon which form of variation is being sought.

The following outlines appropriate actions.

Occupational Health and Safety Clause Only
If the application seeks only to insert the occupational health and safety aspect of the model clause in a form similar to that described in Appendix A then the proposed variation may proceed by consent.

The Industrial Relations Commission has allocated Friday 10 March 2006 for available members of the Commission to deal with those applications where the provisions can be inserted without amendment or only minor amendment.

It is expected those awards where the proposed variation seeks only to insert the Occupational Health and Safety Clause will be made by consent on 10 March.

The Public Employment Office will deal with those applications for variation of Public Service awards to insert the Occupational Health and Safety clause.

Entire Model Clause
Any application to insert the entire Model Clause will need careful examination. The decision at paragraph 28(2)(b) in relation to casual conversion only refers to its adoption into private sector awards. We are aware, however, that some unions intend to argue that a number of public sector awards may be caught.

If the application seeks to insert the entire model clause could you, as a matter of urgency, please contact either Kathryn Freytag on telephone number 9228 3568 or email [email protected] ; or Cathy McInnes on telephone number 9228 3598 or email [email protected] .

The Full Bench of Industrial Relations Commission has allocated Tuesday 14 March 2006 to hear those matters where there is a serious issue regarding the insertion of the model clause.

The Public Employment Office is prepared to act as an agent for those public sector organisations where the variation seeks to insert the entire model clause, allowing a co-ordinated response to the applications. As a result authorisation in the form as described in Appendix B needs to be signed and returned to the Public Employment Office as soon as possible

Copies of all papers received in respect of the application for variation, and authorisations for the Public Employment Office to act as agent should be forwarded to facsimile number 8243 9489 as soon as possible.

Should you have any enquiries please contact either Kathryn Freytag or Cathy McInnes.

C Gellatly
Director-General

Issued : Employee Relations & Workforce Planning Services (Public Employment Office)
File no: PSM/07766 PART 1
Date: 8March 2006
This circular not superseded any other Memorandum/Circular

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related to C2006-11

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Appendix A

OH&S aspect of Secure Employment Test Case Standard

(a) Occupational Health and Safety

(i) For the purposes of this subclause, the following definitions shall apply:

(1) A "labour hire business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which has as its business function, or one of its business functions, to supply staff employed or engaged by it to another employer for the purpose of such staff performing work or services for that other employer.

(2) A "contract business" is a business (whether an organisation, business enterprise, company, partnership, co-operative, sole trader, family trust or unit trust, corporation and/or person) which is contracted by another employer to provide a specified service or services or to produce a specific outcome or result for that other employer which might otherwise have been carried out by that other employer's own employees.

(ii) Any employer which engages a labour hire business and/or a contract business to perform work wholly or partially on the employer's premises shall do the following (either directly, or through the agency of the labour hire or contract business):

(1) consult with employees of the labour hire business and/or contract business regarding the workplace occupational health and safety consultative arrangements;

(2) provide employees of the labour hire business and/or contract business with appropriate occupational health and safety induction training including the appropriate training required for such employees to perform their jobs safely;

(3) provide employees of the labour hire business and/or contract business with appropriate personal protective equipment and/or clothing and all safe work method statements that they would otherwise supply to their own employees; and

(4) ensure employees of the labour hire business and/or contract business are made aware of any risks identified in the workplace and the procedures to control those risks.

(iii) Nothing in this subclause (a) is intended to affect or detract from any obligation or responsibility upon a labour hire business arising under the Occupational Health and Safety Act 2000 or the Workplace Injury Management and Workers Compensation Act 1998.

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Appendix B

AUTHORISATION

The Public Employment Office is authorised to act as an agent and appear for

................................................................................(agency) in respect of the following matter before the Industrial Relations Commission of New South Wales:

 MATTER NO. 4330 of 2003 APPLICATION FOR VARIATION OF AWARDS RE SECURE EMPLOYMENT CLAUSE BY UNIONS NEW SOUTH WALES
 
 

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