The Disputed Matter
59 The amendment proposed to clause 3.1 of the proposed principles by the Anti-Discrimination Board was supported by the Labor Council of New South Wales and not opposed by the Minister. As earlier mentioned, it is opposed by the employer parties to the proceedings.
60 It is appropriate to consider the origins of the anti-discrimination clauses referred to by the Anti-Discrimination Board. The anti-discrimination clause was inserted into awards of this Commission as a result of the decision of a Full Bench of the Commission in State Wage Case 1999 (at 398). In that decision the Commission noted that the genesis of the provision sought by the parties (the clause being supported by all industrial parties and interveners in those proceedings) was the model anti-discrimination clause adopted by the Australian Industrial Relations Commission for Federal Awards in the Third Safety Net Adjustment and s10A Review - October 1995 Decision (1995) 61 IR 236 as later varied in Re Award Simplification Decision (1997) 75 IR 272. It was also noted that those Federal provisions were earlier considered by this Commission in the State Wage Case - April 1996 (1996) 64 IR 439, but on that occasion the Commission had determined to defer the consideration of a model anti-discrimination clause.
61 The Commission gave considerable weight in the State Wage Case 1999 to the agreement reached between the parties and the Anti-Discrimination Board in determining to introduce the model clause (at 394). However, the Commission did not adopt the entirety of the proposal advanced by the parties and the intervener.
62 As to the basis for the provision adopted by the Commission, the Full Bench stated (at 394):
We have also accepted the submissions of the parties that there is a need to depart from the federal clause having regard to the different legislative framework existing in New South Wales and nationally (see State Wage Case - August 1997 (1997) 73 IR 200 at 210). We accept that the insertion of the model clause into awards made under this Act is consistent with the requirements of s146(2) of the Act as the model anti-discrimination clause adopted by us is consistent with the objects of the Act. Furthermore, we consider that the granting of a model clause is in conformity with the requirements of s169(1) of the Act which provides as follows:
The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977.
63 The Full Bench noted that the anti-discrimination clause imposed no new legal obligations upon award parties in addition to those that already existed in relation to discrimination (at 395). The Commission also noted that the parties had opposed the making of a general order on the basis that the principal function of the anti-discrimination clause was "educative" (at 395).
64 In determining to make a general order, the Full Bench stated (at 397):
We are not confident that leaving the standard anti-discrimination clause to be dealt with by way of application will result in sufficiently timely or widespread uptake of the provision, particularly in awards where the new provision might be most important or necessary.
65 The decision of the Full Bench in the State Wage Case 1999 reveals that, whilst the anti-discrimination clause did not create new legal obligations, it was recognised by the Full Bench as performing a potentially important function in some awards of this State, including the facilitation of conformity by industrial parties under awards with the objects of the Act in so far as they concern discrimination (and the provisions of s169(1) of the Act). The benefit of the provision may have been largely educative or illustrative, but it was nonetheless one which enhanced and facilitated the achievement of the objects of the Act to prevent discrimination in the workplace and thereby achieved the principles contained within the Anti-Discrimination Act 1977. By the introduction of an anti-discrimination clause in an award, the award became the instrument to facilitate this outcome.
66 Whilst it is true, as Mr McDonald put it, that the anti-discrimination clause arising from the State Wage Case 1999 was only intended for insertion in awards, the purpose for which the provision was created would seem to be equally applicable to enterprise agreements, particularly those, as was put by Ms Winters, which cover the field of employment in a particular area. Indeed, the proposal by the Anti-Discrimination Board is one which involves the amendment of a principle which requires that approval of enterprise agreements involve a consideration of the principles of the Anti-Discrimination Act. In our view, the insertion of an anti-discrimination clause in an enterprise agreement would serve essentially the same purpose as that envisaged for a similar provision in awards in the State Wage Case 1999. Furthermore, the Commission is required to have regard to the objects of the Act in the establishment of the principles for the approval of enterprise agreements and, as noted in the State Wage Case 1999, the creation of an anti-discrimination clause conforms with the objects of the Act (and, in particular, the object in s3(f)).
67 Overall, we conceive that the same benefits accruing to the parties under awards from the insertion of an anti-discrimination clause would be applicable to the parties to enterprise agreements. However, nothing in the clause proposed by the Anti-Discrimination Board (as indicated by the use of the words "having regard to") or these Principles would require a member of the Commission not to approve an application for an enterprise agreement because of the non-existence of an anti-discrimination clause.
68 We have had regard to the submission made by Mr McDonald that the Commission should not lightly alter the existing principles given that they were created by the consent of the industrial parties. However, we have some difficulty with this submission. Firstly, it is not consistent with the view we have taken as to the meaning of review for the purposes of s33(3). Secondly, one other party and the two interveners do not oppose the provision, notwithstanding their earlier acceptance of the existing terms of the principles. Thirdly, the decision to introduce an anti-discrimination clause in awards occurred after the introduction of the principles.
69 We finally deal with the issue as to whether the anti-discrimination clause is a relevant consideration under s35(1)(b) of the Act. This contention was opposed by Mr McDonald on the basis that the anti-discrimination clause, of itself, created no legal obligation.
70 All awards of this Commission now incorporate an anti-discrimination clause as a result of the general order made in the State Wage Case 1999. If an enterprise agreement replaces the entirety of the terms of any relevant award during its operation then the question arises as to whether the absence of an anti-discrimination clause in such an agreement is a relevant consideration in the assessment of any net detriment for the purposes of s35(1)(b) of the Act.
71 The Full Bench considers that the existence or otherwise of an anti-discrimination clause within an enterprise agreement does require consideration under s35(1)(b) of the Act.
72 The anti-discrimination clause within awards should be considered as part of the "aggregate package of conditions of employment" for the purposes of assessing any "net detriment" to employees for the purposes of s35(1)(b) of the Act. We consider that the reference to conditions of employment within s35(1)(b) should be construed broadly and beneficially as the expression is contained within a provision which is essentially designed to protect employees whose employment will be regulated by an enterprise agreement.
73 The expression "conditions of employment" should be construed as meaning the terms of employment which are found within the relevant awards. In modern awards, the terms of the award may not simply constitute traditional prescriptions such as rates of pay, allowances and non-monetary entitlements such as leave entitlements or hours of work. The non-monetary benefits found within awards are often not confined to such terms but also extend to terms which are more general in nature and less prescriptive in effect. Many awards contain consultative provisions, dispute settlement procedures and provisions relating to flexibility which do not confer specific monetary benefits or other entitlement upon employees but which may, in the particular circumstances of employment, nonetheless represent a benefit for an employee which may be taken into account under s35(1)(b). The terms of an award may also include references to the aspirations and objectives of the parties, the establishment of milestones or other achievement goals and the establishment of co-operative work arrangements such as team based structures. All of these terms in awards conform broadly with the objects of the Act in s3(h). That sub-section is in the following terms:
To encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.