NSW Interpretation of Fair Work Australia Section 27?

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Taco Cat

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30 April 2018
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I interpreted Fair Work Australia section 27 to mean that state law that is not excluded could be used in a fairwork case, but in the WA commission case 2017 WAIRC 00115 Grobbler versus Stass Environmental, it is used to justify a national system employee having the case heard at State level.

Is my interpretation also correct or am I just completely wrong?
 

Paul Cott

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Hi Taco, section 27 and the holding you mention from the case you cite are two different concepts. The first is about which law applies or is excluded whereas the second is about where the case is heard, at what level. Hope that helps.
 
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Taco Cat

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Hi Paul. Can I argue a breach of non excluded state law in the Fairwork Divison of the Federal Circuit Court? Or to put it another way, can a national system employee choose to take a case through the federal or state court as they see fit?
 

Taco Cat

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Specifically, section 210 of the NSW Industrial Relations Act, freedom from victimisation: (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011 ,
 

Rod

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Grobbler was successful because the Commission decided his claim was a non-excluded matter and therefore the Commission could hear the case under state laws.

Your interpretation is wrong. The FWA says some defined matters are not excluded by the FWA and therefore they can still be heard by the state courts/commissions.

The fact that Grobber is a national system employee is not relevant.
 

Rod

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Can I argue a breach of non excluded state law in the Fairwork Divison of the Federal Circuit Court?

Unlikely. I haven't read all the laws to be certain but as a rule State laws are not heard in Cth courts.

can a national system employee choose to take a case through the federal or state court as they see fit?

Yes - sometimes. The type of matter and size of claim determines where it can be heard.
 

Taco Cat

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Unlikely. I haven't read all the laws to be certain but as a rule State laws are not heard in Cth courts.



Yes - sometimes. The type of matter and size of claim determines where it can be heard.

But under section 340 of the FWA, aren't all applicable state laws workplace rights? Isn't section 26/27 as you imply, relevant only to state court jurisdiction, and simply not relevant to breaches of state laws as adverse actions under section 340?
 

Rod

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Would need to see how the courts interpret the State law in question. Some will be in, some are clearly out.
 
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