CROWN EMPLOYEES (PUBLIC SERVICE CONDITIONS OF EMPLOYMENT) AWARD 1997 Notice of Award Review pursuant to section 19 of the Industrial Relations Act 1996 [2001] NSWIRComm 22

DATE: 28 February 2001 Matter Number IRC 1405 of 1999 CROWN EMPLOYEES (PUBLIC SERVICE CONDITIONS OF EMPLOYMENT) AWARD 1997 Notice of award review pursuant to section 19 of Industrial Relations Act 1996 DECISION

1 These proceedings concern the review of the Crown Employees (Public Service Conditions of Employment) Award 1997 ('the Award'). The proceedings were initiated by the Industrial Registrar on 29 March 1999. The parties' discussions led them to the point where it was thought desirable for negotiations about a new award to commence. Those negotiations delayed the review of the Award, which ultimately moved forward so slowly that the s19 award review had to be advanced independently of the negotiations. 2 The parties filed an agreed document containing changes which they proposed be made to the Award in the review proceedings. That document and a number of issues which arose from what was proposed, which I raised with the parties, were dealt with at the hearing of the review in November 2000. The hearing was adjourned in order that the parties could attend to various matters dealt with at the hearing, including the redrafting of various Award provisions, including a simplification of the numbering used in the Award. 3 The further hearing of the matter was adjourned on a number of occasions, while the parties' discussions about drafting matters advanced. It was eventually reported that the parties had resolved all outstanding issues but one. This concerned the wording of clause 20(k) of the revised Award, or clause 11(vi)(k) of the current Award. That provision was one which I had raised with the parties prior to the November hearing. 4 That clause provides: 'Departments shall ensure that a staff member does not constantly forfeit excess credit hours at the conclusion of settlement periods as a result of reasonable requests for flexleave being refused or the staff member being directed by the supervisor to work long hours within the bandwidth.' 5 Having in mind the requirements of s10 of the Industrial Relations Act 1996, that awards be made containing fair and reasonable conditions of employment and the objects of the Act which appear in s3, I raised the drafting of the clause with the parties. This was because the clause suggested on its face that employees who have worked ordinary hours of work under the Award, could end up being in a position where they made a reasonable request to be allowed to take time off in lieu in respect of these hours, in accordance with the flexible leave provisions of the Award, and that such a request could nevertheless be refused by their supervisor. In such a case, an employee might be placed in a position where he or she would be entitled to neither payment nor time off in lieu for such hours worked, so long as, in the words of the clause, this did not happen 'constantly'. This construction seemed so unlikely to have been intended, that I raised with the parties whether it was an ambiguity which required correction. 6 Relevant to this possibility was another subclause which gives the employer but a limited right to extend the period during which such hours must be taken off and the circumstances in which that right might be exercised. Clause 11(vi)(h) provides: 'Settlement period --- Unless a local arrangement has been negotiated in terms of clause 10, Local Arrangements of this award, the settlement period shall be four weeks. (1) For time recording purposes the settlement period and flexleave must coincide.

(2) Where exceptional circumstances apply, eg prolonged transport strikes, adverse weather conditions and the like, the Department Head may extend the affected settlement period by a further 4 weeks.'

7 It did not seem likely that such a seemingly unfair outcome was intended by the Award parties, the Award having been made by consent and reflecting an agreement between them. The suggestion I made to the parties was that the meaning of clause 11(vi)(k) would be clarified by the deletion of the word 'constantly', so as to ensure that employees who did not take accrued time off in lieu within the relevant period, because a reasonable request for time off had been refused by a superior, would not lose their entitlements to such leave. Both parties were attracted to this suggestion at the November hearing, they each seemingly being of the view that the clause gave rise to difficulty. The deletion of the word 'constantly' thus seemed to be an agreed one. 8 However, it emerged that this impression was inaccurate. The deletion of the word was not agreed. The question ultimately required further hearing. The parties filed written submissions, attaching various documents dealing with the history of the award, what had been said at the review hearing and in their discussions. They also made further oral submissions about the matter. 9 The position revealed was that the current award clause emerged from negotiations over the course of some years before the award was made by consent in 1997. The provision had a predecessor in a 1980 agreement between the parties. In that agreement, the word 'consistently' was used in lieu of 'constantly'. So understood, it became apparent that the word was specifically agreed by the parties in the award negotiations as appropriate to permit the possibility that employees who had worked ordinary hours of work would be neither paid nor allowed time off in lieu in respect of such hours, when a reasonable request to take the time off was refused by an supervisor, as long as this did not occur 'constantly'. 10 Extraordinary as this seemed, it was an agreed part of an award scheme which also contemplated that individual Departments could make local agreements to ameliorate the potential harsh effects of the provision. This has occurred, the Premiers Department providing one such example. There, either as the result of the terms of the agreement made or the practice which has developed, employees who are unable to take time off when they make a reasonable request to do so, which is refused, routinely have the time for taking the leave extended, so that it is not lost to them. 11 On the cases which the parties' advanced, however, it is evident that not all Departments have such agreements in place. Presumably, in the case of such Departments the award provision does not give rise to injustice for individual employees in a practical sense. Neither party, after all, has taken steps to seek to vary the award provision, even though the nominal term of the Award has expired. Nor was there any evidence of difficulties which have arisen in respect of the provision. 12 The position of the PEO was that the Award clause was clear on its face and required no change, having in mind the obligation falling upon the Commission pursuant to s19 of the Act. It opposed deletion of the word 'constantly', submitting that to do so would have unforeseeable consequences on various agreements made between the parties under the Award, which would then require review. In the alternative, it proposed different wording, which it is unnecessary here to set out. 13 The PSA, for its part, complained that the PEO had apparently departed from the alteration to the clause which it understood had been agreed at the November hearing. It was submitted that the removal of the word 'constantly' from the clause would make the provision fairer. It could not, however, be submitted that it was a change necessary in order to give effect to any of the requirements of s19 of the Act, the clause meaning what it said on its face and deliberately so. 14 The PSA also strongly opposed the alternative wording advanced by the PEO, submitting that it would introduce confusion into the award provision and would also detrimentally alter employees' entitlements under the current award provision. In light of the conclusion I have reached, it is unnecessary to consider these submissions further. 15 The PSA also explained the history of the current provision and how it had come to be agreed by the Union. It was also explained that the flexible working hours provision was to be the subject of negotiation between the parties in the context of the discussions concerning a proposed new award.

Consideration 16 I am satisfied that the changes which the parties have agreed be made to the Award during these proceedings are appropriate in order to give effect to the requirements of s19 of the Act in respect of this Award. 17 Those changes include various things, such as renumbering, which assists in understanding of the award; the updating of various provisions; the redrafting of various clauses to achieve greater clarity in drafting and the redrafting of the leave provisions, which on their face were inconsistent with the requirements of the Annual Holidays Act 1944. 18 I have been most troubled about the provision of s20 of the Award earlier referred to. That in any award scheme employees who have worked ordinary hours and who make a reasonable request to take leave in respect of such hours in accordance with their award entitlements, which is refused, face the end result that they are neither entitled to payment or leave in respect of that work, seems extraordinary. Having in mind however the fact that the provision was agreed between the parties in the context of a longstanding earlier agreement and in the context of a major renegotiation of the Award and in circumstances where the Award also permits local agreements which ameliorate the consequences of the Award provision, I have concluded that it is a clause which ought not to be changed in these proceedings. 19 I have reached that conclusion reluctantly and only after it became apparent that the effect of the provision had in reality been intended and agreed by the parties. While s19 requires many things, it does not require a review that the Award has achieved fair and reasonable conditions of employment in practice, having regard to its operation since it was made. In this case, such an exercise would require consideration, not only of the Award provision and its operation in practice for particular employees, but also the operation in practice of the Departmental agreements in relation to flexible working hours contemplated by the Award. In this respect the observations of the Full Bench of the Commission in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 at 46 bind me. It was there put: 'We observe also that the Commission is not given a general discretion in s19 to insert into an award being reviewed any other conditions which the Commission might consider a 'modern' award should contain. The review directed by s19 concerns the provisions of existing awards. Unless properly arising from the matters specified in s19 itself, during a review the Commission is not at liberty to insert into awards other conditions not already contained therein. If award parties wish to advance such matters they must, in our view, utilise the other provisions of the Act to which we have referred.'

20 I note that the parties are renegotiating this Award. In the event that an agreement emerges which involves an application for the making of a consent award, which does not alter this provision, I take the view that the parties have a positive obligation to draw attention to this aspect of their agreement and to demonstrate, by the bringing of relevant evidence, what the effect of this provision is for particular employees and Departments, in order that the Commission might be properly satisfied that the provision does in fact achieve the fair and reasonable conditions of employment contemplated by s10 of the Act. 21 The Special Case principle and various provisions of the Act encourage parties to reach agreements. Nevertheless, I observe that in an award of this complexity, where there is a real possibility that an agreed provision may operate unfairly for individual employees, especially given the way in which particular discretions granted by the Award are exercised in practice, the Award parties should draw attention to the provision at the hearing of the application in order to positively demonstrate to the Commission how the agreement being sought to be reflected in a consent award satisfies the requirements of s10 of the Act. It ought not to be left to the member of the Commission hearing the application to extract such a nuance from the terms of the Award itself, when a consent document is presented without explanation and attention being drawn to a provision such as this one.

Order 22 For all of these reasons, I order that the Award be changed in terms of the draft award contained in exhibit 2, except as to clause 20(k), which shall remain unchanged from the current provision. The PEO is ordered to provide a copy of that document to the Registry in computer readable format within 7 days of this decision. ------------------------

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