Building and Construction Industry (State) Award and Others [2006] NSWIRComm 122

FILE NUMBER(S): IRC 6759 of 2005 & 981 of 2006

CORAM: Walton J Vice-President; Boland J; Tabbaa C

CATCHWORDS: Award - Applications for award variation - Applications to change name of 'union picnic day' to 'industry picnic day' - Applications granted

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Shop Employees (State) Award, Re [2006] NSWIRComm 5

HEARING DATES: 23/03/06 EXTEMPORE JUDGMENT DATE: 03/23/2006

APPLICANT Mr S Marshall Construction, Forestry, Mining and Energy Union (New South Wales Branch)

Ms R Mifsud Electrical Trades Union of Australia, New South Wales

RESPONDENTS Ms S Wellard Australian Business Industrial

LEGAL REPRESENTATIVES: Mr I Warren Building Industry Specialist Contractors Organisation of New South Wales Master Painters Australia, New South Wales Association Wall and Ceiling Industries of New South Wales

Mr S Schmitke Employers First

Ms F Hancock Master Builders Association of New South Wales Master Painters Australia, New South Wales Association and Newcastle Master Builders' Association

CORAM: Walton J, Vice President Boland J Tabbaa C

RE BUILDING AND CONSTRUCTION INDUSTRY (STATE) AWARD AND OTHER AWARDS

Application by Construction, Forestry, Mining and Energy Union (New South Wales Branch) for variation re picnic day.

RE ELECTRICAL, ELECTRONIC AND COMMUNICATIONS CONTRACTING INDUSTRY (STATE) AWARD AND OTHER AWARDS

Application by Electrical Trades Union of Australia, New South Wales Branch for variation re picnic day

DECISION OF THE COMMISSION (Ex tempore) [2006] NSWIRComm 122

1 We should preface the publication of this decision by indicating that on 23 March 2006 the Full Bench gave the decision ex tempore. We indicated at the time we would give reasons later. Upon reflection, and having regard to the reasons given ex tempore, we consider that sufficient reasons have already been expressed for parties to understand why the applications were granted. 2 On 22 December 2005, the Construction, Forestry, Mining and Energy Union (New South Wales Branch) ("CFMEU") made application pursuant to s 17 of the Industrial Relations Act 1996 to vary five awards. The five awards and the essential nature of the variation to each are as follows: (1) Building and Construction Industry (State) Award - by changing the name of the additional public holiday currently described in the award as "the union picnic day" to "the industry picnic day" and providing for employees to be represented by a bargaining agent (where applicable) in any negotiations to substitute another day for the prescribed day. (2) Glass Workers' (State) Award - by changing the name "union picnic day" to "industry picnic day" and providing for employees to be represented by a bargaining agent (where applicable) in any negotiations to substitute another day for the prescribed day.

(3) Joiners (State) Award - by providing for employees to be represented by a bargaining agent (where applicable) in any negotiations to substitute another day for the prescribed day (the Award currently provides for a "picnic day" and not a "union picnic day").

(4) Building Crane Drivers (State) Award - by changing the name "union picnic day" to "industry picnic day". (5) Plasterers, Shop Hands and Casters (State) Consolidated Award - by changing the name "union picnic day" to "industry picnic day". 3 An application (later amended) was also made by the Electrical Trades Union of Australia, New South Wales Branch ("ETU") to vary a number of awards including the Electrical, Electronic and Communications Contracting Industry (State) Award and the Electricians Etc., (State) Award to change the name "union picnic day" to "industry picnic day" in the relevant clauses of the Awards. In relation to Awards in the ETU's application other than the two we have referred to, namely the Energy Australia Award 2004, the Country Energy Award 2005 and the Integral Energy Award 2005, agreement was reached with each of the employer parties on the terms of an appropriate variation and each of those Awards has been previously varied by consent. An application to vary the Local Government Electricians (State) Award was discontinued.

4 The employer parties to the building group of Awards and the two electrical Awards (that is the Electrical, Electronic and Communications Contracting Industry (State) Award and the Electricians Etc., (State) Award) opposed the applications, except that we note the Electrical Contractors Association NSW did not appear in the proceedings. 5 Having heard the submissions of the parties and considered the evidence of Mr Andrew Ferguson, the CFMEU's State Secretary as well as the Statement of Mr Bernard Riordan, State Secretary of the ETU, we have decided to grant the applications in respect of each of the Awards, subject to it being made clear that the day referred to as a picnic day or industry picnic day shall be regarded as an additional public holiday under the Awards as is presently the case, for instance, in the Building and Construction Industry (State) Award. This will make it clear that the Awards that are the subject of the applications reflect an entitlement to 11 public holidays, which is consistent with what the Full Bench found in Re Shop Employees (State) Award [2006] NSWIRComm 5 "is undoubtedly the number of holidays in New South Wales enjoyed by most employees covered by State awards". Any sexist language in the relevant clauses should also be removed.

6 We should make it clear that developments at the federal level relating to the commencement of the Work Choices Act and the implications flowing from those developments for State Awards have not been a factor influencing our decision to grant the application. 7 The Full Bench's task is to determine whether there is a proper basis for granting the applications "according to the existing law and practice in this jurisdiction, regardless of any impending changes to the federal laws": Re Shop Employees at [57]. In that respect, the applications to vary are unexceptional. They seek, in most cases, to simply delete the reference to "union picnic day" and substitute "industry picnic day". The variations, in terms, do not disturb the current arrangements that apply for the taking of the picnic day. 8 The employers contended that as a consequence of granting the application there would be additional economic cost by virtue of increased attendance by non-union members at the picnic. We consider, however, that if this was to be successfully contended it was incumbent on employers to bring evidence. This was not done. In any event, we consider on the basis of Mr Ferguson's evidence the economic impact of increased attendance at the picnic would be minimal. We note the evidence of Mr Riordan was to the same effect.

9 Moreover, the evidence of Mr Ferguson that it is intended to facilitate the union picnic day becoming the industry picnic day by the provision of a subsidised ticket to non union members working in the industry, makes the application a creditable one, because it would serve one of the objects of the Industrial Relations Act, namely, the encouragement of union membership. We note incidentally, that the application eliminates union picnic day, which the Commonwealth Parliament obviously considers to be an unacceptable condition of awards. 10 In a number of the awards the applications seek to introduce the concept of a bargaining agent as an alternative to employees being represented by a union official in negotiations for another day to be substituted for the prescribed industry picnic day. We see no objection in principle to such an idea but we direct that the parties confer in relation to the provision to ensure there is no confusion or misunderstanding about the intent of the variation in this respect. 11 We consider that the variations proposed by the applicant unions would provide for conditions of employment that are fair and reasonable. Accordingly, subject to what we have said about sexist language and the picnic day being an additional holiday, we propose to vary the five building industry Awards in the relevant terms of Schedule B to the CFMEU's application and the two electrical Awards in the terms of the amended application filed by the ETU on 20 March 2006 and we so order. The variations shall take effect on and from 23 March 2006. The respective union applicants shall prepare draft orders reflecting the variations to the relevant Awards in accordance with this decision. The draft orders will be dealt with by Tabbaa C at 12 noon on Friday 24 March 2006 on delegation by the Full Bench. __________________________________

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