Metal, Engineering and Associated Industries (State) Award. Application by The Employers' Federation of New South Wales for a new award and other matters. [2001] NSWIRComm 26

Ms Brooks Australian Business Industrial

Mr Boyce The Electrical Contractors Association of NSW

Mr Bargo The Master Builders Association of NSW LEGAL REPRESENTATIVES: Mr Thistlewaite The Australian Workers' Union, New South Wales and Electrical Trades Union of Australia, New South Wales Branch

Mr Terzick Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch

Mr Su Motor Traders' Association of New South Wales

Mr Moir The Australian Industry Group, New South Wales Branch

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

METAL, ENGINEERING AND ASSOCIATED INDUSTRIES (STATE) AWARD. APPLICATION BY THE EMPLOYERS' FEDERATION OF NEW SOUTH WALES FOR A NEW AWARD.

METAL & ENGINEERING INDUSTRY (NSW) INTERIM AWARD. APPLICATION BY THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH FOR VARIATION RE SECTION 17.

METAL AND ENGINEERING INDUSTRY (NEW SOUTH WALES) INTERIM AWARD. NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996.

METAL AND ENGINEERING INDUSTRY REDUNDANCY (STATE) AWARD. NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996.

METAL AND ENGINEERING INDUSTRY FAMILY LEAVE PROVISIONS (STATE) AWARD. NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996.

METAL TRADES (TRAINING WAGE) (STATE) AWARD. NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996.

DECISION (Extempore) [2001] NSWIRComm 26

1 This matter concerns notices of award review issued and applications made pursuant to s17 of the Industrial Relations Act 1996 ("the Act") in relation to awards operating in the metal industry in this State. The notices of award review concern four awards: 1. the Metal & Engineering Industry (New South Wales) Interim Award; 2. the Metal and Engineering Industry Redundancy (State) Award; 3. the Metal and Engineering Industry Family Provisions (State) Award; 4. the Metal Trades (Training Wage) (State) Award 2 The applications were filed respectively by the Employers' Federation of New South Wales (now Employers First) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). These applications sought to establish a new award to be entitled the Metal and Engineering and Associated Industries (State) Award (although the applications differed in some substantial respects as to the terms of the proposed award and as to the appropriate application of counterpart award principles). Each application sought the rescission of the awards, the subject of the notices of award review, save for the Metal Trades (Training Wage) (State) Award. 3 Ultimately, the various award review proceedings and applications pursuant to s17 of the Act were joined. However, later in the proceedings, Matter No. IRC99/5787 was removed from the joint proceedings. It shall now be the subject of separate consideration by the Commission. In consequence this decision does not concern the Metal Trades (Training Wage) (State) Award.

Background 4 The proceedings in relation to the Metal and Engineering Industry (State) Interim Award were initiated by the Industrial Registrar by a notice of award review dated 17 March 1999. The matter was originally brought on for directions in March 1999, at which time the matter was adjourned upon the application of the parties to allow some discussions to occur and for there to be prepared a draft award reflecting their considerations as to the application of s19 of the Act. 5 The matter came on again in April 1999. It was reported at that time that there was some progress in the discussions of the parties. Directions were made for the parties to prepare a draft award and a document outlining their respective positions with respect to the award review process. The parties were also directed to confer. 6 The matter was again listed in June 1999, by which time various documents had been filed setting out the respective positions of the parties. The matters were referred to conciliation which occurred (on the first occasion) on 11 October 1999. 7 The matter was stood over for further conciliation during which period the remaining three awards (the subject of s19 review proceedings) were notified for award review, namely, the Metal and Engineering Industry Family Leave Provisions (State) Award, the Metal Trades (Training Wage) (State) Award and the Metal and Engineering Industry Redundancy (State) Award. 8 The matters were again listed for conciliation in December 1999. The award review and s17 proceedings were joined at this time (hereinafter "the matters"). That conciliation was not successful in resolving all the issues between the parties and as a result the matter was further programmed for conciliation and, if required, arbitration. Various directions were given as to the preparation for conciliation or hearing which included directions requiring conferences between the parties and the filing of submissions. The matters were stood over for further directions and, if necessary, conciliation in March 2000. 9 Arising out of the earlier discussions between the parties and the conciliation process, on 7 February 2000 an application was filed by the Employers' Federation of New South Wales, as it then was, pursuant to s17 of the Act. 10 On 3 March 2000 the matters (including the then anticipated application by the AMWU) were programmed for hearing. At that stage conciliation had failed to resolve the differences between the parties as to the proposed award. 11 On 20 March 2000, and in accordance with directions earlier given, the AMWU filed its application in the proceedings. The proceedings then went forward with a series of draft awards (amending earlier proposals) being prepared by the parties. Further conciliation occurred over a period of time with respect to those draft awards. This resulted in a gradual narrowing of the issues between the parties. 12 The matter came again before the Commission on 6 November 2000 at which time it was submitted that all but one of the issues between the parties had been resolved. Employers First amended its application to reflect the state of the agreement then reached. This document was marked exhibit 30. 13 The matter was adjourned into further conciliation which ultimately resulted in agreement being reached between the parties as to the entirety of the matters before the Commission. This outcome was reported to the Commission today. A new proposed award, which represents the agreement of the parties and which rescinds and replaces the awards, the subject of award review proceedings (save for the Metal Trades (Training Wage) (State) Award), was marked exhibit 31 in the proceedings. 14 I have set out this rather elaborate description of the background of these proceedings in order to indicate some difficulties which arise with respect to proceedings concerning the review of awards under s19 of the Act, particularly where complex issues arise and where proceedings under s17 of the Act are heard in conjunction with award review proceedings. It is understandable why the parties in the present proceedings brought applications under s17 of the Act, particularly in the light of their respective contentions as to the operation of the counterpart nature of the awards. However, it must be observed that, in addition to the complexities of the proceedings, the bringing of such applications materially impacts upon the duration of the proceedings. It will be appropriate, therefore, to carefully evaluate whether an application which is brought, as a purportedly related proceeding to those initiated under s19, should be joined or heard concurrently with the award review proceedings.

Consideration 15 The parties to these proceedings have described this award as a counterpart to the Metal, Engineering and Associated Industries Award, an award made by the Australian Industrial Relations Commission. The proposed award, it was submitted, represents the current form of a Federal Award, namely, the Metal Engineering and Associated Industries Award 1998 Part 1, save for variations which are appropriate having regard to the requirements of the Act and the adoption of terms which represent arrangements only relevant to local circumstances. It was submitted that the consent of the parties is significant in the Commission's consideration of this matter. 16 In my view, the application made by Employers First, as amended in these proceedings (and now exhibit 31), conforms with the requirements of the Act and, in particular, s10 of the Act (and insofar as the matters concern the operation of s19 of the Act, the application conforms with the principles for the review of the award: re Principles for review of Awards (1998) 85 IR 38 and Principles for Review of Awards - State Decision 1998 (unreported, Wright J, President, Hungerford J, Schmidt J, Sams DP and Redman C, Matter No. IRC3786 of 1998, 28 April 1999)). 17 I make the award known as the Metal Engineering and Associated Industries (State) Award in terms of exhibit 31 in these proceedings. I note with respect to that award that the parties have agreed that leave should be reserved with respect to certain provisions of the award as identified in paragraphs 3 and 4 of exhibit 32 in the proceedings; as elaborated upon by Mr Ryan in his submissions today. The award shall operate on and from today's date and shall remain in force for a period of 12 months. 18 Upon the application of the AMWU, leave is granted to discontinue the proceedings in Matter No. IRC1147 of 2000. 19 I order the rescission of the awards referred to in clause 1.5 of exhibit 31. The proceedings in Matter No's. IRC 1138, 6125 and 5908 of 1999 are threby concluded. The proceedings concerning the Metal Trades (Training Wage) (State) Award are stood over for directions. These proceedings are concluded accordingly.

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