Nursing Homes, &c Nurses' (State) Award & Anor [2001] NSWIRComm 298

Industrial Relations Commission (NSW)|2000-10-31|Before: Wright J, Walton J, Schmidt J, Mr J

CITATION : Nursing Homes, &c Nurses' (State) Award & Anor [2001] NSWIRComm 298 Aged Services Association of New South Wales (Industrial) Australian Business Industrial Australian Industry Group Australian Liquor, Hospitality and Miscellaneous Workers Union Australian Nursing Homes and Extended Care Association (New South Wales) Catholic Commission for Employment Relations Employers Federation of New South Wales (now known as Employers First) PARTIES : Health Commission of Australia Health Research Employees' Association of New South Wales Labor Council of New South Wales Moran Health Care New South Wales Nurses' Association President of the Anti-Discrimination Board Private Hospitals Association Transport Workers Union of Australia, New South Wales Branch FILE NUMBER: IRC 5264 and IRC 5380 of 1999 CORAM: Wright J President; Walton J Vice-President; Schmidt J; Cambridge C Award - application for new award - Personal/carer's leave - Bereavement leave

State Decision - variation of clause awarded for Catholic Employers in the State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 Anti-Discrimination Act 1977 (NSW) s35 LEGISLATION CITED : Industrial Relations Act 1991 s14(1) Industrial Relations Act 1996 s3(f) s3(h) s10 s17(3)(b) s19 s51 s51(2) s146(2) s167 s169 s169(1) Personal Carer's Leave Test Case - Stage 2 - November 1995 (1995) 62 IR 48 Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 Re Journalists (Specialist Publications) (State) Award (unreported, McKenna C, 31 October 2000) CASES CITED : State Family Leave Case - May 1995 (1995) 59 IR 1. State Personal/Carer's Leave Case August 1996 (1996) 68 IR 308 State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 Teachers - St Lucy's School Ltd Enterprise Agreement 1999 and Others [2001] NSWIRComm 4 HEARING DATES: 02/09/2001; 02/16/2001; 09/19/2001 DATE OF JUDGMENT: 11/23/2001

Australian Liquor, Hospitality and Miscellaneous Workers Union Mr M Vance

Catholic Commission for Employment Relations Mr J V Murphy of counsel

Employers Federation of New South Wales (now known as Employers First) and Australian Business Industrial LEGAL REPRESENTATIVES: Mr T McDonald

Labor Council of New South Wales and New South Wales Nurses' Association Mr D Inverarity of counsel and Mr J Taylor

President of the Anti-Discrimination Board Ms A F Backman of counsel

JUDGMENT: - 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Schmidt J Cambridge C

MATTER NUMBER IRC 5264 OF 1999 NURSING HOMES, &C NURSES' (STATE) AWARD Application by Catholic Commission for Employment Relations for variation re Catholic Personal/Carer's Leave

MATTER NUMBER IRC 5380 OF 1999 NURSES, OTHER THAN IN HOSPITALS (STATE) AWARD & ORS Application by Catholic Commission for Employment Relations for variation re Catholic Personal/Carer's Leave DECISION OF THE COMMISSION

1 These applications were originally brought by the Catholic Commission for Employment Relations ('CCER') pursuant to s 17(3)(b) of the Industrial Relations Act 1996 ('the Act'), seeking the variation of the personal/carer's leave and bereavement leave provisions of a number of existing awards. The applications were brought after proceedings before Walton J Vice President, in which the Nursing Homes &c Nurses (State) Award arose for review under s 19 of the Act. That review raised questions concerning the application of the decision in State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 to the award, particularly in the case of Catholic employers. 2 The CCER applications sought to insert into each award a 'Catholic Personal/Carer's Leave and Catholic bereavement leave' provision in terms of the provisions awarded by the Full Bench in the 1998 Personal/Carer's Leave Case. The aim, in the case of those employed by Catholic employers, was to replace the standard clauses which had been inserted into the award as part of the general order made by the Commission in that case, with the provisions there awarded, (referred to by the parties in these proceedings as the "Catholic provisions" or "the Catholic clause").

3 When the application came to the Full Bench for hearing, it had the consent of all but one of the affected unions. The Australian, Liquor, Hospitality and Miscellaneous Workers' Union ('the ALHMWU'), the Transport Workers' Union ('the TWU') and the Health and Research Employees' Union ('the HREA') consented to the application. The then Employers Federation, (now known as Employers First), appeared and announced that it had no interest in the applications and withdrew from the proceedings. The applications were, however, opposed by the New South Wales Nurses' Association ('the NSWNA'), whose members were covered by two of the affected nursing awards. The NSWNA had the support of the Labor Council. The President of the Anti-Discrimination Board ('the ADB'), also intervened in the proceedings in order to oppose the applications. A letter sent by the Minister for Industrial Relations to the CCER was also tendered confirming that the Minister adhered to the submissions put in the 1998 Personal/Carer's Leave Case, to which we will refer further below. 4 The Catholic provisions awarded for Catholic employers by order of the Full Bench of the Commission in the 1998 Personal/Carer's Leave Case, reflected an agreement which had been reached by the industrial parties in those proceedings, including the Labor Council and the NSWNA. As noted at p418 of the decision, the ADB, which also appeared in those proceedings, had accepted that the agreement finally put forward by the industrial parties did not, on its face, 'evidence unlawful discrimination under the provisions of the Anti-Discrimination Act 1977 (NSW)'. 5 The hearing of these applications was adjourned in order that discussions between the parties might take place. As a result, the applications were amended. A new award to be known as the 'Other Services (Catholic Personal/Carer's Leave) (State) Award', was agreed between the parties, as were minor variations to the various current awards sought to be varied in the original applications, so as to make reference to the new award. The amended applications came to the Full Bench at the resumed hearing, with the consent of the Catholic employers, all of the union parties to the proceedings and with the support of the Labor Council. No other party to any of the awards in question appeared so as to oppose the making of the new agreed award. The position of the ADB, however, was unchanged. It also opposed the making of the new agreed award. 6 The proposed new award contains provisions, particularly as to personal/carer's leave, which are, on any view, more generous than any of those approved by the Full Bench in the 1998 Personal/Carer's Leave Case, including the Catholic clause then awarded, which itself was more generous than the standard clause. The ADB, nevertheless, took the view that the provision proposed in the new award was unlawfully discriminatory, having regard to the provisions of the Anti-Discrimination Act. Indeed, its submissions went further. On its approach, even if that view were not accepted, the proposed award should be rejected by the Commission, having regard to the broad objects of the Act, which include in s 3(f), 'to prevent and eliminate discrimination in the workplace'. The ADB's submission was that even if not unlawfully discriminatory, the award was still discriminatory in the broader sense in which that word is used in the Act. Reliance for this approach to the Commission's award making powers under the Act was placed upon the decision of McKenna C in Re Journalists (Specialist Publications) (State) Award (unreported, 31 October 2000). 7 Written submissions were filed by the parties prior to the resumed hearing. It thus became clear that while the new award addressed some of the ADB's earlier concerns, the ADB's opposition to the making of the new award, had two main aspects. One went to the definition of 'family' contained in the proposed new award, which was said to be both unlawfully discriminatory and discriminatory on the wider basis asserted. The second went to the obligation imposed by the award, that employees taking personal/carer's leave disclose to their employer the nature of the relationship which the employee had with the person in respect of whom personal/carer's leave was being taken. This, it was argued, would be likely to lead to further discrimination against certain employees at Catholic workplaces, notwithstanding that this is a provision which currently applies at such workplaces, under the standard personal/carer's leave clause which applied to those employees. We note that concerns about such discrimination were not advanced by the ADB in relation to the standard clause in the 1998 Personal/Carer's Leave Case. 8 The position of the award parties and the Labor Council in their written submissions was that there was nothing unlawfully discriminatory, or otherwise discriminatory, in the award which the parties had agreed. To the contrary, it was submitted that the agreement reached allayed the concerns which had been held by the NSWNA and the Labor Council in relation to discrimination, while allowing the parties not to compromise any positions of principle which they each held. It was further submitted that the approach of the ADB, if accepted by the Commission, would result in the affected employees being deprived of generous new rights agreed in relation to access to leave in circumstances of pressing domestic necessity, as well as depriving them of more generous rights in relation to personal/carer's leave, than was currently available to them under the standard personal/carer's leave provision contained in the applicable awards. 9 At the resumed hearing, further discussions between the award parties about the concerns expressed by the ADB, led to a further agreed amendment to the proposed award, which addressed the concerns the ADB had raised in relation to disclosure of the nature of the relationship which an employee had with the person in respect of whom personal/carer's leave was being taken. While it was accepted for the ADB that this change ameliorated some of its concerns, the making of the award was still opposed. 10 In the result, what finally arose for determination by this Bench was the question of whether the award to which the industrial parties had agreed should be made, having regard to the case advanced by the ADB in relation to the proposed definition of family in the new award. That agreed definition was in the same terms as that contained in the Catholic personal/carer's leave provision approved in the 1998 Personal/Carer's Leave Case. The ADB submitted that the definition was unlawfully discriminatory and otherwise discriminatory, as that term is to be understood under the Act, so as to lead the Commission to refuse to make the award agreed between the industrial parties. 11 For reasons which are set out below, we have concluded that the ADB's submissions should be rejected and that the award which the parties have agreed, should be made. In coming to that conclusion we have been mindful of the generous entitlements which the new award would confer upon all employees; the requirements of s 10 of the Act, that the Commission make awards setting fair and reasonable conditions of employment; the requirement of s 169, that we take account of the principles contained in the Anti-Discrimination Act and the requirements of s 146(2), which obliges us to have regard to the objects of the Act and the public interest. 12 We have also taken account of the fact that the application which the parties pressed at the resumed hearing reflected an agreement of the employer and unions party to the award, supported by the Labor Council. Encouragement of such agreements as a part of the orderly system of industrial relations established by the Act is consistent with the objects of the Act, although the considerable weight usually given to such agreements would not be available if the terms of an award were discriminatory (which has not been demonstrated in this case).

The 1998 Personal/Carer's Leave Case 13 As earlier noted, the seven current awards referred to in clause 2 of the proposed new award, each apply to all employees covered by such awards, including those employed by various Catholic employers. Each of those awards presently contains the standard personal/carer's leave and bereavement leave provisions inserted generally into awards of the Commission, by order made in the 1998 Personal/Carer's Leave Case. 14 The 1998 Personal/Carer's Leave Case was considered pursuant to s 14(1) of the Industrial Relations Act 1991 ('the 1991 Act'). It dealt with both personal/carer's leave and bereavement leave. Various general orders as to those matters were made, including the variation of orders earlier made in the State Personal/Carer's Leave Case August 1996 (1996) 68 IR 308, which itself followed upon the decision of the Australian Industrial Relations Commission ('the AIRC') in the Personal Carer's Leave Test Case - Stage 2 - November 1995 (1995) 62 IR 48. 15 Personal/carer's leave arose for review in the 1998 proceedings, as a result of the 1996 Personal/Carer's Leave decision, which provided for such a review. Bereavement leave arose for consideration as a result of the 1996 Personal/Carer's Leave decision, which deferred consideration of that matter for a time. The 1998 case also dealt with an application for the making of new agreed general orders to apply to Catholic employers, who had been the subject of certain exemptions granted in the 1996 Personal/Carer's Leave decision. Those applications had been referred to the Full Bench by Schmidt J. 16 Exemptions granted to Catholic employers from the orders made in the 1996 Personal/Carer's Leave decision followed upon earlier exemptions granted to such employers in the State Family Leave Case - May 1995 (1995) 59 IR 1. There, at p11, various awards identified by the Catholic Hierarchy, (then appearing for various Catholic employers, as already containing 'leave entitlements in the nature of compassionate or family leave over a range of industries and occupations' were exempted from the orders made by that Full Bench. 17 The crucial aspect of the background to the current applications, is that the clause awarded in the 1998 Personal/Carer's Leave Case for Catholic employers had developed over time as the result of a range of agreed award provisions providing for family and other types of compassionate leave. Those provisions were in advance of those which had otherwise emerged generally in awards by order of the Commission from the test cases mentioned and provided the basis upon which Catholic employers were granted exemptions from generally applicable provisions. Significant advances in such conditions had been agreed by Catholic employers, to the undoubted general advantage of the employees concerned and indeed, in the public interest, having regard to the purpose for which the leave in question is available to be accessed by such employees. 18 As in these proceedings, the positions adopted by the industrial parties in the 1998 Personal/Carer's Leave case developed during the course of those earlier proceedings, in part as the result of observations then made to the parties by the Bench. Those discussions, in the case of the various awards which applied to Catholic employers, concerned the agreed award provisions then sought by the CCER, having in mind the submissions which it was advancing in relation to various provisions of the Anti-Discrimination Act and their application to Catholic employers. 19 The ADB, an intervenor in the proceedings, originally submitted that the agreed Catholic personal/carer's leave provision was inconsistent with the provisions of the Anti-Discrimination Act. At p432 of the decision, the Full Bench noted: 'In considering the terms of the ADB submissions earlier set out, it is to be noted that the CCER had foreshadowed that it would rely upon ss46 A , 49 ZO (3) and 55 to 57 of the Anti-Discrimination Act and it was, as we understand it, on this basis that the ADB responded to reliance upon those provisions.'

20 At p434 the Full Bench concluded: 'However, our present view is that the general principle of construction in relation to those provisions is that set out in Waters v Public Transport Commission (Vic) (1992) 173 CLR 349 at 369 and 382 - that is, that such exemptions should normally be construed narrowly. Further, that irrespective of which approach to construction should be adopted, it is doubtful that those provisions other than s56(d), in their terms, have any relevance to the present proceedings. On the other hand, we consider that the CCER submission is on firmer ground in its reliance upon the provisions we have earlier referred to - that is, ss25(3)(c), 38 C (3)(c), 40(3)(c), 49 D (3)(c) and 49 ZH (3)(c) of the Anti-Discrimination Act . In our view, the effect of the provisions earlier referred to is to remove from disconformity, which might otherwise arise, with the provisions of the Anti-Discrimination Act those sections of the awards proposed to be made for the Catholic Schools sector and also the Independent Schools sector. Thus, in accordance with the mandate upon us under s 351, the Commission's obligation to take into account the principles contained in the Anti-Discrimination Act also requires it give appropriate effect to the exemption provisions contained in those sections relating to private education authorities. We also consider that we are required to consider the implications of s56(d) for the provisions we are requested to award. It is convenient at this point to comment upon the submissions made on behalf of the Crown. We have carefully considered the various, and to some extent competing, submissions in relation to the approach to be adopted by the Commission in relation to the inter-relationship between the Industrial Relations Act and the Anti-Discrimination Act . We have earlier referred to the relevance of the approach of the High Court in Waters v Public Transport Commission . Subject to that important consideration, and subject also to the consideration that the submissions put on behalf of the Crown dealt largely with the approach to be adopted in applying s 169 of the 1996 Act in a different statutory context, we consider that the submissions of the Crown usefully set out the appropriate approach that should be taken in relation to s351(1) of the 1991 Act.'

21 The Full Bench had earlier quoted in some detail the submissions advanced for the Crown in those proceedings, supportive of the view that the proposed Catholic provision was not unlawfully discriminatory under the Anti-Discrimination Act. As noted in the above quotation, while the case fell to be determined in accordance with the provisions of the 1991 Act, the parties had, in fact, advanced their submissions in relation to the provisions of the 1996 Act (see also pp418-9). The submissions accepted by the Full Bench thus included, relevantly: '7. It is clear therefore that when section 169(1) requires the Commission to "take into account" the principles of the A-D Act, it is not required to automatically apply them, but it is required to consider them in the exercise of its discretion. In this way, the provision is similar to section 146(2), under which the Commission "must take into account the public interest in the exercise of its functions". Section 169(1) is to be contrasted however to section 35(1), referred to above, where in the case of an enterprise agreement the Commission is only to approve the agreement if it is satisfied that the agreement "complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977)". Section 35(1) leaves no scope for the exercise of discretion by the Commission, and requires the application of the provisions of the A-D Act to enterprise agreements. Section 169(1) however gives a direction as to the way in which discretion is to be exercised, so that the "principles" of the A-D Act are to be treated as a consideration (albeit a fundamental one) in the decision-making process rather than statutory provisions to be applied in a non-discretionary way.

What is to be taken into account under section 169(1) are the "principles" of the A-D Act. The A-D Act itself does not contain any provisions which are in terms described as its principles, and nor is the word "principles" a term commonly used in law to refer to the provisions of a statute or any particular part of a statute. The best approach then is to interpret the word "principles" according to its ordinary meaning. "Principle" has different shades of meaning, but the most apposite definitions would seem to be "a fundamental, primary, or general truth, on which other truths depend ...a fundamental doctrine or tenet" (see Macquarie Dictionary , 2nd ed., p.1350). Therefore the use of the word in section 169(1) seems directed at picking up the foundational concepts of the A-D Act.

This is not to say that the word "principles" excludes the actual provisions of the A-D Act, but rather includes those in a broader conceptual framework. This proposition derives support from the decision in New Zealand Maori Council v Attorney General of New Zealand [1994] 1 All ER 623, in which the Privy Council was called on to consider the meaning of a statutory reference to the principles of the Treaty of Waitangi. The Court said at p.629: 'Both the 1975 Act and the 1986 Act refer to the "principles" of the treaty. In their Lordships' opinion the "principles" are the underlying mutual obligations and responsibilities which the treaty places on the parties. They reflect the intent of the treaty as a whole and include, but are not confined to, the express terms of the treaty ... With the passage of time the "principles" which underlie the treaty have become much more important than its precise terms.' [emphasis added]'

Any doubt as to whether the word "principles" was intended to included (sic) the express provisions of the A-D Act can be laid to rest by reference to the Second Reading Speech by Minister for Industrial Relations on the Industrial Relations Bill 1995 (this speech was adopted by the Minister in his Second Reading Speech on the Industrial Relations Bill 1996). The Minister said ( Hansard , 23 November 1995, p.3857): "More generally, the commission is required to take into account the principles contained in the Anti-Discrimination Act, which includes, when dealing with matters relating to employment in the New South Wales public sector, part 9A relating to promoting equal employment opportunity for designated groups". Here the Minister refers to the principles of the A-D Act as including a specific set of provisions within it.

Section 56 of the A-D Act and section 169(1) of the IR Act

Section 56 of the A-D Act provides as follows: '56 Religious bodies Nothing in this Act affects: (a) the ordination or appointment of priests, ministers of religion or members of any religious order,

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.'

The question that has arisen in the proceedings is whether section 56 of the A-D Act falls within the principles of the A-D Act that the Commission is required to take into account

It follows from the approach taken in paragraphs 7-9 above that section 56 of the A-D Act is picked up in section 169(1) of the IR Act. That is, the term "principles" includes all the express provisions of the A-D Act, including section 56. It might be added to this that even on a broader conceptual level, it would seem to be a fundamental feature of the A-D Act that it was not intended to interfere with the operation of religious bodies. Accordingly, the exemption in section 56 is a principle of the A-D Act that must be taken into account by the Commission in the exercise of its discretion.'

22 It was thus concluded by the Full Bench, at pp434-6 as to that part of the CCER case which led to the granting of the Catholic personal/carer's leave provision in respect of awards which did not apply to Catholic employers alone, (as is the case in the awards here under consideration), that: 'However, the six awards earlier referred to, to which the CCER is a party, but which do not apply, or alternatively, do not only apply to private education authorities, are in a different category. The exemption provisions earlier referred to either do not apply to the employers bound by these awards, or apply only to some of them. However, we consider that each of those awards bind Catholic employers who can properly be described as bodies "established to propagate religion" in terms of s56(d) of the Anti-Discrimination Act. We consider therefore that in relation to each of those awards, it is appropriate to have regard to the terms of that provision for the purposes of our consideration of this matter. We note that the parties have agreed to particular provisions concerning personal/carer's leave for those awards, and that these provisions are limited in their terms to employers represented by the CCER and which are bodies of the kind contemplated by s56(d). This is illustrated by the first clause of the proposed provisions, which is in the following terms: "1. The following awards, as set out below, insofar as they provide for employees of a Catholic Diocese, a Catholic Religious Order, a Catholic Parish, or other body established by the Catholic Church to propagate religion, and any award which provides such leave entitlements replacing the operation of any below mentioned award with respect to employees of a Catholic Diocese, a Catholic Religious Order, a Catholic Parish, or other body established by the Catholic Church to propagate religion, are subject to this Schedule: Charitable Institutions (Professional Staff Social Workers) Award Charitable Institutions (Professional - Paramedical Staff) (State) Award Social and Community Services Employees (State) Award Miscellaneous Gardeners, &c. (State) Award Miscellaneous Workers' - General Services (State) Award Catholic Press Newspaper Company Pty Limited (State) Award 1995"

Although the proposed provisions do not contain provisions in terms relating to personal/carer's leave or bereavement leave to employees in de facto relationships or same-sex relationships, on the same basis as the standard provision, or the provision which is applicable in other areas, such as in relation to independent schools generally, it is intended that such instruments will enable the use of sick leave for a pressing domestic necessity. An example of a proposed provision in that regard is: "(a) Subject to paragraph (c), for the purposes of this clause "pressing domestic necessity" means any reason at the discretion of the employer, provided that such discretion is not unreasonably withheld and is exercised so as not to contravene any applicable provisions of the Anti-Discrimination Act .

(b) An employee, other than a casual employee, with sick leave credits may apply to utilise such credits up to 5 of any current or accrued sick leave entitlement days in any one year of the employee's service, for any pressing domestic necessity other than to care for or support a person defined in subparagraph 3.1(c)(ii).

(c) Where an employee, other than a casual employee, is not entitled to utilise sick leave credits pursuant to paragraph 3.1(a) he or she may access any current or accrued sick leave for any pressing domestic necessity, where the employee is responsible for the care or support of a person not referred to in subparagraph 3.1(c)(ii).

(d) The yearly entitlement for the purpose of pressing domestic necessity in paragraph 3.2(b) is non-cumulative.

(e) If required, an employee shall provide a written statement or other evidence supporting the application for Personal/Carer's Leave for the purpose of pressing domestic necessity."

In our view, particularly in the light of the agreement reached between the industrial parties, the form of the provisions that have been agreed, the fact that the operation of those provisions will be reviewed in two years (as to which see below), and having regard to the requirements in s351(1) of the 1991 Act, it is appropriate that exemptions be granted in terms of the agreement between the parties; further, that corresponding award provisions consistent with these exemptions be made.'

23 It is thus relevant to our consideration of the proposed new award, that in making the orders in the 1998 Personal/Carer's Leave Case, the Full Bench was satisfied that the orders and awards about which the parties then had reached agreement, satisfied the statutory requirements there falling upon the Commission, under the 1991 Act, albeit that the parties had advanced their agreements in the context of the corresponding provisions of the 1996 Act. That was a view reached after consideration of the position which all parties to the proceedings, including the ADB, had advanced about the Anti-Discrimination Act. As earlier noted, that included the concession of the ADB that what had finally been agreed during the course of the proceedings in relation to Catholic employers, did not evince unlawful discrimination under the Anti-Discrimination Act. It is pertinent to observe that we are not called upon in these proceedings to review the correctness of that decision.

The proposed new award 24 As earlier noted, the effect of the proposed new award for the affected employees, is to replace the standard personal/carer's leave provision approved in the 1998 Personal/Carer's Leave Case, with a new and more generous entitlement and to introduce a right to access sick leave in cases of pressing domestic necessity. 25 The operative provisions in question in their amended form provide: '3.1 Use of sick leave to provide care or support

(a) An employee, other than a casual employee, with responsibilities in relation to a family member or other person who needs the employee's care or support shall be entitled to use any current or accrued sick leave entitlement for absences to provide care or support for such person when they are ill. Such leave may be taken for part of a single day.

(b) If required, the employee shall establish the illness of the person concerned, either by production of a medical certificate, statutory declaration, written statement or other evidence and that the illness is such as to require care or support by the employee. An employee is not entitled to leave under this subclause where another person has taken leave to care for the same person.

(c) The entitlement to use sick leave in accordance to this subclause is subject to the employee being responsible for the care of the person concerned.

(d) For the purposes of this clause "family member" means a parent, step-parent, spouse, grandchild, sibling, grandparent, child, step-child, foster child, adopted child or foster parent of the employee or their spouse. (e) Where practicable, an employee shall give the employer notice prior to the absences of the intention to take leave. The employee shall also provide the name of the person requiring care, a statement to the effect that the employee is responsible for the care of such person, and the estimated length of absence. If it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.

3.2 Use of Sick Leave for a Pressing Domestic Necessity

(a) For the purposes of this clause "pressing domestic necessity" means any reason at the discretion of the employer, provided that such discretion is not unreasonably withheld and is exercised so as not to contravene any applicable provisions of the Anti Discrimination Act .

(b) An employee, other than a casual employee, shall be entitled to use any current or accrued sick leave entitlement up to a maximum of 5 days in any one year of the employee's service, for any pressing domestic necessity other than to care for or support of a person referred to in subclause 3.1.

(d) If required, an employee shall provide a written statement or other evidence supporting the application for personal/carer's leave for the purpose of pressing domestic necessity. (e) Wherever practicable, an employee shall give the employer notice prior to the absences of the intention to take leave and the estimated length of absence. If it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer by telephone of such absence at the first opportunity on the day of absence.'

26 In opposing the making of the award sought, the ADB's pivotal submission was that the definition of 'family member' proposed was contrary to the provisions of the Anti-Discrimination Act, being discriminatory on the basis of marital status, homosexuality and race. This followed, so it was submitted, because persons who do not fall within that definition "cannot clearly see on the face of the award that they may access leave in their circumstances as no reference is made in the clause to their particular caring relationship". The other submissions advanced by the ADB depended on an acceptance of the correctness of this premise. 27 The ADB's opposition to the making of the award thus falls to be determined upon a consideration of whether this fundamental premise is an accurate reflection of the provision which has been agreed. We think that it is not. 28 It will be seen from the terms of clause 3.1(a), that employees are thereby granted access to their sick leave entitlements for absences to provide care or support for "a family member or other person who needs the employee's care or support". 29 As the ADB noted, the definition of family appearing in clause 3.1(d) does not include de facto spouses, same sex partners or members of extended families who may be of significance to certain indigenous people, or people of particular ethnic origins. Despite this definitional approach, it is clear that all of such persons and, indeed, an even wider group of persons, fall within the balance of the operative provision in clause 3.1(a) in respect of whom employees are given access to their leave entitlements. That is that employees are entitled to access their sick leave entitlements in respect of any 'other person', who requires the employee's care or support when such a person is ill. 30 It can thus be appreciated that the actual effect of the award provision is to give any employee the right to access the sick leave which the award grants to the employee, irrespective of the nature of the caring relationship which exists between the employee and the person who is ill, thus requiring the employee's care or support. Contrary to the ADB's case, the award imposes no 'particular caring relationship' by way of limitation upon employees accessing their leave in such circumstances. Rather, the limitation is a different one and identical in the case of either family members as defined, or other persons, namely, that those persons being ill require the employee's care or support. This conclusion is reinforced by the provision made as to notice in clause 3.1(e), where the only advice required to be given by the employee accessing the leave, is the name of the person who is ill and a statement advising that the employee is responsible for the care of that person. This provision emerged from an amendment to the clause which arose from contentions raised by the ADB, that the earlier form of the clause may result in the disclosure of the nature of the relationship which the employee had with the person in respect of whom personal/carer's leave was being taken. It was submitted and plainly accepted, given the amendment, that this may have given rise to issues concerning indirect discrimination. 31 With the removal of the earlier form of clause 13.1(e), and having regard to the provisions of clause 3.1(a), we consider that the argument of the ADB that the award provides for unlawful discrimination under the Anti-Discrimination Act must be rejected. 32 As earlier noted, the currently agreed provisions were developed during the proceedings as the result of discussions between the parties, including the ADB, which included consideration of observations made to the parties by the members of the Full Bench. Undoubtedly, the new provisions agreed as a result are an improvement over those awarded in the 1998 Personal/Carer's Leave Case - both the standard clause and the Catholic clause. The new clause provides employees with more beneficial entitlements than the standard provision and also makes it explicit, on the face of the clause, that all employees, whether or not they fall within the definition of family, are entitled to the benefits provided by clause 3.1. 33 From the point of view of those working in Catholic workplaces, where the standard personal/carer's clause currently applies and which requires them to reveal the nature of the relationship with the person for whom such care is to be provided, it is difficult to see why the making of the new award would be a negative, rather than a positive, step forward, having in mind the concerns raised by the ADB. Such employees are granted more generous rights in relation to personal/carer's leave and the existing requirement that the employee advise the nature of the relationship in question when taking such leave, is removed. Having in mind the concerns expressed by the ADB as to the potential consequences of the nature of such relationships having to be revealed by employees, this alteration is also only likely to have a positive effect in removing the risk of any discrimination arising - unlawful or otherwise. 34 We turn then to deal with the ADB's argument that the award is otherwise discriminatory and should not be made, in the light of those conclusions. 35 As we have noted, reliance for this argument was sought in the approach adopted by McKenna C in the Journalists (Specialist Publications) Award case, that award there having arisen for review under s 19 of the Act. The alternative argument urged upon the Full Bench by the ADB was that even if we were satisfied that the award proposed was not unlawfully discriminatory under the Anti-Discrimination Act, it would be contrary to the wider concerns inherent in the Act in relation to the prevention of discrimination at workplaces and would thus not be awarded by the Commission. 36 In reviewing the Journalists (Specialist Publications) Award under s 19 of the Act, McKenna C took the view that while a provision for paid maternity leave was not unlawfully discriminatory under the Anti-Discrimination Act, having regard to the express exemption provisions of s 35 of that Act, the absence of a provision for paid paternity leave in the award in question was nevertheless discriminatory, in the wider sense in which that word is used in the Act. As part of the s 19 review, the Commissioner thus required the insertion of a parental leave provision in the award, so as to make paid leave available to 'the parent who is the principal care-giver of the child'. The award parties concerned resisted this approach, to no avail. The result was an order which removed from the award an agreed and lawful provision giving female employees who give birth to a child an entitlement to paid maternity leave, and which inserted an entitlement of a different character, namely paid leave for employees who are both parents and principal care givers of a child. 37 That decision was not appealed. Nevertheless, we are satisfied that the approach adopted by the Commissioner was in error and should not be followed, it being inconsistent with the decision of the Full Bench in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 at pp49 to 51, which the Commissioner was bound to follow. The effect of the Commissioner's approach was that the principles contained in s 35 of the Anti-Discrimination Act were given no practical effect, a result contrary to the conclusion reached by the Full Bench at p51 of the Principles for Review of Awards Decision, in relation to the regard which the Commission must pay to the principles contained in the Anti-Discrimination Act, when reviewing awards under s 19 of the Act. It was also inconsistent with the conclusion reached in the 1998 Personal/Carer's Leave Case earlier quoted, that exemptions provided by the Anti-Discrimination Act must also be taken into account by the Commission in the exercise of its discretions. 38 We also consider that the approach adopted was inconsistent with what was said at p46 of the Principles for Review of Awards Decision: '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 s 19 concerns the provisions of existing awards. Unless properly arising from the matters specified in s 19 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.'

39 For these reasons it is not appropriate to apply the decision of McKenna C in Journalists (Specialist Publications) Award. In so deciding, we do not consider it necessary to express a view as to whether s 169(1) confines the Commission in the exercise of its functions to consider only the actual terms of the Anti-Discrimination Act, as even upon a broad construction of s 169(1) we do not consider that the subject provisions of the new award offend the "principles contained in the Anti-Discrimination Act 1977". 40 In coming to that view, we reiterate that we are not satisfied that an employee who accesses the leave which the new award grants, in order to provide care and support to a person who does not fall within the definition of family member in the award, is being subjected to any detriment at all. The entitlement to the leave in such circumstances is clear on the face of the award and identical in either case. In those circumstances, in our view, it would be inconsistent with the obligations which fall upon us under the Act, for the application to be refused. 41 We deal finally with the question of whether the definition of family member contained in clause 3.1(d) of the proposed award is necessary at all. On one view it is arguable that the definition is otiose, given the wider rights there granted. We are satisfied, however, that it is appropriate to give effect to this aspect of the parties' agreement, having regard to the CCER's position that there could be no consent to the clause in the absence of that provision.

42 The CCER explained that the award which the parties brought forward was but the latest part of the development by Catholic employers of agreed benefits granting employees leave to care for others, over a significant period of time and in advance of those to which other employers have agreed and the Commission has awarded. In those circumstances the CCER cogently argued that it would be unfair for it now to be required to delete the definition and it would, in that event, not be in a position where it could agree to the making of the award. 43 The relevant award history relied upon was earlier outlined. We are satisfied that the approach here advanced by the parties, is consistent with the conclusions reached in the 1998 Personal/Carer's Case and that discussed by Walton J in Teachers - St Lucy's School Ltd Enterprise Agreement 1999 and Others [2001] NSWIRComm 4. The result of the drafting of the clause which the parties have agreed is that the definition of family member is a non-prescriptive aspect of the clause in question. It is commonplace for awards to contain such agreed provisions and consistent with the provisions of s 3(h) of the Act. We are thus not persuaded that we should refuse to implement the parties' agreement by declining to make the award sought.

44 We finally observe that we are also satisfied that the proposed award satisfies the requirements of s 19 of the Act and the applicable award review principles and that in making the award, no other changes are required to be made to it, pursuant to that section in order to give effect to its requirements. Future review 45 The Full Bench also noted at p436 of the 1998 Personal/Carer's Leave Case, that the parties "…were united in their submissions that the Commission should review the operation of the personal/carer's leave and bereavement leave provisions dealt with in the 1996 decision and in this decision, within a period of two years from the date of the judgment. We have determined to accede to that request having regard to the nature of the orders made in this decision." A proposal that such a review now be conducted by the Commission was advanced in further written submissions filed by the ADB, but was not supported by the other parties. 46 We note that neither the ADB nor any of the other parties drew attention to any difficulty with the operation of the existing personal/carer's provisions, which would give rise to the need for such a review. The Full Bench is itself not aware of any such problems. The provisions determined in the 1998 Personal/Carer's Leave proceedings were, of course, inserted into awards by general order. The principles established for review of awards under s 19 of the Act also require consideration to be given to test case decisions. Awards made by the Commission have now been reviewed under s 19 of the Act. It follows that if there were difficulties with the personal/carer's leave provision or their operation, they are likely to have come to the attention of the parties and the Commission in these s 19 award review proceedings. They have not. 47 The Commission has not to date moved to conduct the foreshadowed review. Given the position of the parties here, there is some doubt as to whether it is appropriate or necessary to conduct such a review. An application for such a review may be made in accordance with ss 51 or 167 of the Act. No such application has been made. In the circumstances the Commission will otherwise only consider whether it is appropriate to conduct such review, if a major industrial party or the ADB applies for a Full Bench to do so, acting of its own initiative in accordance with s 51(2) of the Act.

Order 48 We accordingly make the new award and vary the current awards in the terms agreed by the parties. The award and variations will operate on and from today's date, subject to any party to the new award who did not appear at the final hearing, who wishes to be heard in relation to any aspect of the award, which might have an unexpected or unanticipated effect. We have taken this course in light of the agreement to the terms of the final award which was reached only at the hearing. Any such party should make application to the Registrar be heard within 28 days of the date of this decision. 49 We delegate all of our functions in relation to any such application to her Honour, Justice Schmidt. 50 The CCER is to serve notice of this decision upon any award party not represented at the hearing, within 7 days of the date of this decision. ------------------------

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