Broken Hill Commerce and Industry Consent Award 2001 [2004] NSWIRComm 200 - NSWIRComm 1998 case summary — Zoe

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Broken Hill Commerce and Industry Consent Award 2001 [2004] NSWIRComm 200

[2004] NSWIRComm 200

Industrial Relations Commission (NSW)|1998-11-13|Before: Sams DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-11-13

Before

Sams DP

Source

Original judgment source is linked above.

Judgment (94 paragraphs)

[1]

CITATION : Broken Hill Commerce and Industry Consent Award 2001 [2004] NSWIRComm 200 APPLICANT: PARTIES : Broken Hill Chamber of Commerce Inc RESPONDENT: Construction, Forestry, Mining and Energy Union (NSW Branch) FILE NUMBER: 5570 of 2003 CORAM: Sams DP Application to vary award - contractors to Broken Hill mining industry - application to remove 4.5% wage loading and reduce double time for all overtime - economic difficulties in Broken Hill - changed circumstances for employees at the mine site - previous decisions of the Commission - State Wage Case - Special Case Principle - Economic Incapacity Principle - whether sufficient reason to vary award - public interest - evidence of Chamber of Commerce. CATCHWORDS : Held, application must meet Special Case requirements - Economic Incapacity Principle also relevant - lack of direct evidence of affected employers - evidentiary onus not satisfied - Special Case not made out - sufficient reason not established - public interest test not satisfied - Commission's earlier decisions distinguished - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Australian Insurance Employees Union, Ex parte Academy Insurance Pty Ltd and others (1988) 78 ALR 466 Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award 2004 [2003] NSWIRComm 405 Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218 Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) and other awards (1945) 44 AR 64 Notification under s.130 by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch of a dispute with Fillery Antiwear Products & Sandblasting (unreported, Bishop C, IRC1294/98, 13 November 1998) Notification under s130 by Broken Hill Chamber of Commerce Inc. of a dispute with Barrier Industrial Council re Broken Hill Commerce and Industry Consent Award [2002] NSWIRComm 89 Notification under section 130 by the Construction, Forestry, Mining and Energy Union (New South Wales) of a dispute with the Broken Hill Chamber of Commerce and others re alleged breach of award [2003] NSWIRComm 250 Operational Ambulance Officers (State) Award [2001] NSWIRComm 331 O'Sullivan v Farrer (1989) 168 CLR 210 CASES CITED : Public Hospital Nurses (State) Award [2002] NSWIRComm 100 Re, Broken Hill Commerce and Industry Consent Award (No 2) [2002] NSWIRComm 309 Re Pastoral Industry (State) Award (2000) 104 IR 268 Re Queensland Electricity Commission & Ors, Ex parte Electrical Trades Union of Australia (1987) 21 IR 151 Safety Net Review - Wages May 2004 Print: PR002004 State Wage Case (2003) 121 IR 446 Storeworkers - IGA Distribution [2002] NSWIRComm 156

[31]

27 The second decision in Notification under s130 by Broken Hill Chamber of Commerce Inc. of a dispute with Barrier Industrial Council re Broken Hill Commerce and Industry Consent Award [2002] NSWIRComm 89 followed a dispute lodged by the Chamber in February 2002 concerning the interpretation of clause 19.16 of the Award. The Commission as presently constituted concluded: In my view, the correct analysis of the contemporary position is no different to that which was resolved by Bishop C in 1998 and 1999. I respectfully concur with the Commissioner's soundly based conclusions. I see no reason to revisit or overturn the Commissioner's reasons or findings. Indeed, as I am being asked to interpret the same provision, I intend to apply the same principles to this matter. I reaffirm that the mineworkers' conditions of employment and the basis for such conditions have changed too dramatically such as to make it impossible for a comparable assessment to the rates and conditions under the Award. The Award clause should be interpreted and operate in the following manner: A 4.5per cent loading is applicable to the Award rates of pay. The rates of pay in the Award comprehend all "mine privileges"; save for the lead bonus, which will continue to be paid. It follows that employees under the Award shall receive shift penalties, and overtime rates according to the Hours of Work, Overtime and Shift provisions of the Award, not according to past practice or the former mineworkers' agreement. As my interpretation of the clause should make it abundantly clear as to what is to apply in the future, I do not consider it appropriate to vary the clause in the manner sought by the Broken Hill Chamber of Commerce. I am reluctant to do so for two reasons. Firstly, a new Consent Award was made recently by the Commission in Matter IRC 1503 of 2002, on 11 April 2002. Secondly, a first enterprise agreement binding the prospective buyer of the Broken Hill Mine, Peryilya Pty Ltd, and the Unions was ratified by the Commission on 19 April 2002. The parties to this dispute may well wish to review their present arrangements in light of the terms and conditions in the Perilya Broken Hill Mine Enterprise Agreement 2002.

[32]

28 In August 2002, the Union lodged a dispute, Notification under section 130 by the Construction, Forestry, Mining and Energy Union (New South Wales) of a dispute with the Broken Hill Chamber of Commerce and others re alleged breach of award [2003] NSWIRComm 250 concerning the continued payment of the lead bonus to the employees of contractors. In that matter, the Commission as presently constituted said: In my view, there is absolutely no ambiguity with the meaning of cl 19.16. Applying the plain, ordinary English meaning must result in a conclusion that if a mine privilege, ie. the lead bonus, is no longer paid to mine workers on the mine, it cannot be claimed to apply to Award employees working on the mine for contractors. This approach is entirely consistent with my interpretation of the same provision in similar circumstances in the 2002 decision. Like here, that condition (compulsory overtime) no longer applies to mine employees. It is relevant to the interpretation of cl 19.16 to have regard to the terms and conditions of another industrial instrument; namely the Perilya Broken Hill Mine Enterprise Agreement . This is so because the interpretation of cl 19.16 is wholly dependant on what " mine rate or wages and all mine privileges " are being paid to mine workers at the mine. Put another way, the terms and conditions of Award employees are to be considered in the context of what now applies to employees of Perilya. Another canon of award construction is to have regard to the intentions of the parties at the time the Award was made. I have already found that there is no ambiguity in the words used in cl 19.16. However, what is the practical result of what the Union proposes? Obviously, it would mean that an Award employee would receive a mineworker's benefit, which the mineworkers themselves no longer enjoy. This cannot be a fair or logical result; nor can it be what the parties intended when the provision was first introduced in the Award. Indeed, it would be an absurd and impractical outcome. It would give a meaning to the words that they are not fairly capable of bearing. At para 45 of the decision the Commission said: It is not unreasonable or unexpected for the chamber to seek to review the present arrangements in light of the significant change in mineworker conditions under the Perilya Agreement.

[61]

56 In Public Hospital Nurses (State) Award [2002] NSWIRComm 100, the Full Bench said : There was no overarching submission by the Association about the principles relevant to its application. Nor was it entirely clear from the Association's submission which of the wage fixing principles was applicable in respect of each of the claims although, in most cases, the nature of the individual claim suggested which principle might be relevant. We have taken the view that in considering each of the claims by the Association we should test it against what we consider to be the relevant principle. In that respect we note that the most recent authoritative discussion on the nature of a special case was that by the Full Bench in Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274 and by a subsequent Full Bench in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331. In Re Social and Community Services Employees (State) Award the Full Bench said: As Mr Reitano for the Union argues, the present Special Case principle is not relevantly different from that found in the State Wage Case, May 1991 (1991) 36 IR 362 which was considered in Re Crown Employees (Administrative and Clerical Officers State) Award and Other Awards (No 2) (1993) 52 IR 243. In the latter decision the Full Commission held at 376 - 377: "In our view, the special cases section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed. Some of the cases brought under the special cases provision have relied, it is true, on the Work Value Changes principle, a principle which is not relied on here. But other cases, some of which have earlier been identified, have substantially been brought on the basis that developments in workplace reform of a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wage increases beyond those normally allowable under the principles. On a number of occasions such applications have been approved by the Commission. In some of them the amounts of wage increase have been agreed by the parties but in others they have not, and the Commission has made an arbitrated decision in the matter. In our view the present application can fit comfortably into the class of case to which we have just referred, certainly so far as it seeks wage increases by way of award prescription … … We therefore find that the applicants are entitled to bring their case under the special cases provisions of the principles. That, of course, is not the end of the matter. The Full Commission must decide whether, on the whole of the material before it, and bearing well in mind the respondent's opposition, the claim should in whole or in part succeed, and, if so, what increase should be awarded and what conditions, if any, should be prescribed. But we repeat our view that, in accordance with the principles, it is entirely appropriate for this claim to be heard and for the Commission to grant the claim in whole or in part if considered justified on the merits. It is also entirely appropriate, if it is concluded that, in general, the claim should succeed, the Commission have regard to economic considerations, including the changing value of money over time, when deciding the amount of increase which should be awarded. Matters which may be considered in that regard are the date on which the last wage increase for employees in question took effect, and changes in money values which have occurred since that time or are forecast during the prescribed life of the award to be made."

[62]

Further in Re Transport Industry (State) Award (1996) 95 IR 126 a Full Bench of the Commission observed at 130-131: "Mr. Warren submitted the Carpenters case principle is irrelevant to the determination of a special case; but the principles of wage fixation operate, in effect, as a code which provides all the principles of application. We are unable to accept this view. The approach adopted by the Full Commission in the Crown Employees case was that a case, if made out to be "special", may be determined according to its circumstances. That approach requires, in effect, that the Commission be satisfied that the case is not an ordinary one, but has special attributes which warrant its approval despite the restrictive considerations imposed generally by the principles of wage fixation. That does not mean that the Commission is precluded in an appropriate case, from deciding that an award should be made over the objection of a particular employer or group thereof. Indeed, a special case does not require consent at all." Thus it can be seen, as in our view Mr Reitano correctly submits, that strict compliance with the wage fixing principles generally or with the work value principle and structural efficiency considerations in particular is not required where as here a case is advanced as a special case. In saying that we should not be taken to mean that such considerations will necessarily be excluded from the special case. As much is clear from the Crown Employees case. It is however appropriate to observe, again as Mr Reitano submits, that the present Special Case principle unlike its 1990 predecessor does not require that cases be considered "in accordance with the structural efficiency and other relevant principles". It requires, as was said in the Transport Industry case, that special attributes exist which warrant approval by the Commission despite the restrictive considerations imposed generally by the principles of wage fixation and that is the essential basis upon which the Commission will approach the determination of the present application. … We are persuaded that this is a special case that warrants the granting if not in whole then in significant part, of the Union's claim. In that regard we note in addition to what has been observed earlier that a Full Bench of the Australian Industrial Relations Commission recently expressed a view as to what constitutes a special case within the meaning of the wage fixing principles. In Metal, Engineering and Associated Industries Award , 1998 - Part 1 (Print T4991, 29 December 2000) [(2000) 110 IR 247 at 266 - 267] the Full Bench said: "In our view, "special case", as used in Principle 10, is not a self defining term. The identification of a special case is reserved to a Full Bench level of determination. It is not necessary or desirable to attempt to paraphrase that requirement into a set of principles, or a code of considerations for general application. A case by case approach is necessary. The circumstances of the Award and the industry in which it operates are of fundamental importance in determining whether the requirement is satisfied. In this matter, the special case requirement entails that the AMWU has the task of satisfying the Commission that there are sufficiently compelling reasons for awarding, as minimum rate conditions to apply across the industries covered by the Award, the substantive changes that it seeks. Should the AMWU satisfy that requirement, it will, in our view, have made out a special case in the circumstances applying to the Award."

[63]

At least for the purpose of these proceedings we do not consider the approach set out in that decision is materially different to the approaches laid down in the 1993 Crown Employees case and the 1996 Transport Industry case. Particular reference has, however, been made to the unique history of this award and we note in the recent Full Bench decision in Re Corrections Health Service Nurses' (State) Award (No 2) [2001] NSWIRComm 58 at [31], that one of the factors which led to the Full Bench determining a special case had been established was the history of industrial regulation of the relevant employees. After referring to the decision in the Social and Community Services Employees case and other decided cases, the Full Bench in Re Operational Ambulance Officers (State) Award stated: A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of a special case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors).