Poultry Industry Preparation (State) Award and Other Awards, Re [2003] NSWIRComm 129

Poultry Industry Preparation (State) Award and Other Awards, Re [2003] NSWIRComm 129 - NSWIRComm 1997 case summary — Zoe

[15]

1 On 4 and 5 July 2001, the Full Bench heard applications for leave to appeal and, subject to leave being granted, appeals by Employers First and Australian Business Industrial (ABI) against decisions of McKenna C given on 14 January and 3 April 2001 in which the Commissioner varied the Poultry Industry Livestock (State) Award 300 IG 208, the Poultry Industry Preparation (State) Award 265 IG 559, the Poultry Industry Preparation Wages (State) Award 282 IG 648, the Biscuit and Cake Makers (State) Award 309 IG 157, and the Pastrycooks, &c (State) Award 309 IG 133, (the awards) pursuant to s 19 of the Industrial Relations Act 1996 (the Act). 2 Mr J Gallagher SC appeared with Mr P Newall for the appellants. Mr B Lloyd appeared for Quality Bakers of Australia Ltd (QBA). Mr M Thistlethwaite appeared for The Australian Workers' Union, New South Wales (AWU). Mr S Gurney appeared for The Australasian Meat Industry Employees' Union, New South Wales Branch and Newcastle and Northern Branch (AMIEU). Mr M Lennon appeared for the Labor Council of New South Wales. Whilst it appeared in the proceedings at first instance, the National Union of Workers, New South Wales Branch, did not appear in these proceedings. 3 Having considered the parties' submissions, the Full Bench announced on 5 July 2001 its decision that leave to appeal should be granted, the appeal upheld, the decisions and challenged award variations made by McKenna C should be set aside and the awards varied in terms of exhibit 2, a document which contained the agreed variations to the relevant awards in the event that the appeals were upheld. The Full Bench indicated that reasons for decision would be given in due course, and made the following observations "for the benefit of parties to proceedings under s 19 of the Act": The Commissioner decided to remove from the sick leave provisions of the subject awards the provision requiring employees to communicate the nature of their injury or illness to their employer when absent from work due to such occurrences.

[47]

26 The Commissioner stated that in her view the consent position between the parties covered "essentially the same matters that were in contention" in the earlier Livestock award proceedings and that she "did not propose to deal again in this decision with submissions already considered" in the decision of 19 January as "the further submissions advanced in these proceedings have not led me to any relevantly different conclusion". Having made reference to a submission from counsel for the employer parties that in the latter proceedings, "no party … could be said to be trying to use s 19 as a 'back door' to effect changes which otherwise would have to be brought by way of a special case", the Commissioner made some further observations on the nature of the Commission's role in s 19 award review proceedings, similar to those made in the decision of 19 January, as follows: In s 19 proceedings where the industrial parties are in consent, but the Commission does not accept that consent position as representing an appropriate s 19 review outcome, it may be asked rhetorically what "application" could be referred to the President for special case consideration under the wage fixing principles and who would make the submissions in any such proceedings contrary to the parties' consent proposals? I think the answer must be that there is no application, as such, and that position is crystallised in circumstances where all industrial parties are in consent, but the Commission, having regard to the provisions of s 19 of the 1996 Act, does not accept such consent position as being the appropriate review outcome. A number of very recent decisions have similarly concluded that an application under s 17 is not required in order to give effect to changes in s 19 matters, eg see Re Warehouse Employees - Drug (State) Award, Kavanagh J, IRC/99/851, 21 February 2001; and Re Rock and Ore Milling and Refining (State) Award and other awards, Sams DP, IRC 99/6041 and other maters, 28 March 2001.

[52]

31 Turning then to the issues surrounding the form of the sick leave provisions in the other awards, notably in terms similar to those dealt with in the decision of 19 January 2001 as requiring an employee to disclose to an employer the nature of a personal illness or injury, the Commissioner held that "whilst I have considered the new or additional submissions advanced", she maintained her view and adopted the reasons given in the decision of 19 January 2001, noting in particular that "consent of the parties in each of the awards in question to the inclusion of such a provision does not leave me to any contrary view". McKenna C did not accept contentions advanced on behalf of the employer's that such a clause assisted compliance with occupational health and safety legislation, stating "I can see no good need for an award-based requirement on employees to state the nature of every illness that may befall them", before making the following conclusions: In my opinion, it is not discriminatory within the meaning of the Anti-Discrimination Act 1977 to require an employee to provide a medical certificate if required to support a claim for paid sick leave; and each of the awards makes provision for the provision of medical certificates. However, it is, in my opinion, overstepping the mark to also have an award-based requirement on employees to personally state to the employer the nature of the illness or injury. It must be borne in mind that this requirement applies to every illness or injury that may befall an employee. There would be an obligation to personally state to the employer information concerning potentially intensely personal, private or distressing information about the nature of an illness or injury - information that an employee may be shielding even from his or her own family members and friends. I cannot accept the proposition that it is appropriate for any such requirements to feature in any modern award, having regard to the balance between employers' reasonable needs for relevant information (eg the anticipated period of absence) and protecting employees' rights to privacy about matters as personal as illness where the employee does not want, for his or her own reasons, to discuss such matters with the employer. I determine accordingly in relation to each of the awards. To the extent that this involves a values-based assessment of what is appropriate in a modern award, I consider that sch changes are within jurisdiction given that the Commission is to make changes considered necessary as a result of a review.

[55]

34 The applications for leave to appeal and the appeals reflect largely the same grounds. The matters in common to the four appeals are as follows: 1. The Commissioner erred in holding that none of the variations made to the Award went beyond the scope of s 19 of the Act. 2. The Commissioner erred in holding that none of the variations proposed to be made to the Award warranted referral to the President in accordance with the Special Case Principle. 3. The Commissioner erred in holding that none of the variations proposed to the award went beyond the scope of the matters contemplated in the decision of the Full bench in the Review Principles Case, particularly in holding that none of the award variations contemplated amounted to applications to vary the Awards, and did not attract the Wage Fixing Principles. 4. The Commissioner erred in proceeding on the basis that in the exercise of her powers pursuant to s 19, the Commission may vary awards in order to give effect to the Commission's opinion as to what a modern award should contain. 5. The Commissioner erred, and took into account an irrelevant consideration, when she permitted that view to affect or form any part of her decision. 6. The Commissioner erred in holding there was no jurisdictional basis for the Commission to insert stand-down clauses in awards, or otherwise give effect to stand-downs, otherwise than pursuant to s.126 of the Act. 7. The Commissioner erred in deleting and/or varying the clauses in the awards. 8. The Commissioner erred in holding that the requirement placed in the various awards for an employee to advise the employer, so far as is practicable, of the nature of the employee's illness was an "arcane and intrusive requirement", contrary to "modern notions of privacy", and thereby permitting value judgments to influence the outcome of the review process with respect to the substantive terms of the awards. 9. The Commissioner erred in placing insufficient weight on the fact that the awards as previously made were done so by consent.

[83]

63 The decision then went to "various questions going to the construction of s 19", and in particular, we would draw attention to what was stated on pages 47 - 48 of the decision under the heading "The construction of s 19(6) of the 1996 Act": The question whether in s19 review proceedings the Commission is required by sub-s(6) thereof to make any change to an award was much debated. It was the final submission of the Labor Council that in the review process the Commission could change matters of form, such as sexist language, but that in the case of matters of substance, having identified in the review that change was required, it would direct the parties to make an application in accordance with s17 of the 1996 Act for variation of the award. Such applications would then be determined by the Commission in accordance with the requirements of that section and the applicable wage fixing principles. What such "matters of substance" would include was not specified. The Crown took a different view by submitting that, while natural justice would oblige the Commission to give the parties an opportunity to be heard in relation to any changes to be made to an award, once the Commission had come to the conclusion in the review proceedings that some change to the award was necessary as a result of the review, s19 (6) required it to make such a change. The employers, apart from the NSW Farmers, adopted a similar position. The NSW Farmers argued that s19(6) was merely a machinery provision and that any change to an award had to be effected under other provisions of the Act on appropriate application; for example, by way of a variation under s17 or an award of consolidation under s20. It was submitted that in the review proceedings, the Commission should merely determine what changes were required and then direct the award parties to make application to give effect to that determination. What was less clear was what the Commission would do if the parties failed to comply with such a direction and how, in that event, the requirements of s19(6) would have been satisfied. We accept the construction urged by the Crown and by the other employers. The statutory injunction in s19(6) is mandatory, requiring that "the Commission is to make such changes to awards as it considers necessary as a result of a review". In our view, such changes must be made as a part of the review process. The legislature did not intend that the fate of the changes found to be necessary be left to the Commission's direction being complied with by the award parties. We observe that the s19 review process as part of industrial regulation by awards involves both new and different processes and obligations. They are philosophically different to the familiar processes available to award parties in the 1996 Act and in the predecessor legislation to which we earlier referred. It requires the Commission to make changes to the award which properly flow from the review process . That obligation could not be achieved by the giving of a possibly unenforceable direction to award parties that they make an application consistent with the view the Commission had formed in the review. (our emphasis) We add that in coming to a view changes were required to the award being reviewed, that the Commission of necessity would have regard to other principles applicable to the making or variation of an award, such as the wage fixing principles and would not act inconsistently with them. The parties would also be given an opportunity to be heard. Nevertheless, if the Commission formed the view in the review proceedings that a particular change to the award was required then, in order to satisfy the purpose of the review as specified in s19(2), it would be obliged to make the change as part of the review process in accordance with the mandatory provisions of s19(6). To adopt any other approach would potentially make the review process a pointless exercise. The fate of awards judged as requiring modernisation, presumably as a result, in part at least, of a lack of attention by the award parties, would again be left to the same parties. Potentially, that would result in the award review process being a time-consuming, expensive and ultimately futile exercise.

[86]

66 The Award Review Decision proceeds to deal with two practical issues associated with a "review", namely, the role of the Commission in the receipt and consideration of evidence in the proceedings, and the role of the parties and the Commission in conducting a "review". In this latter respect, the Full Bench emphasised (at 53) that "whilst the 1996 Act imposes an obligation upon the Commission to review awards under s 19 it does not detract from the burden falling upon the parties to an award to participate themselves in the normal way in such proceedings", continuing to observe that regardless of whether the review be commenced by application or of the Commission's own motion, "the matter will be programmed, heard and determined in the ordinary way". After having referred to the submissions of the parties to the proceedings, the Full Bench stated (at 56): The Commission is neither a party to awards made under the 1996 Act nor is it a party to proceedings conducted before it. The review process established by s19 will not necessarily involve the type of adversarial process envisaged in some other aspects of the 1996 Act, indeed the Commission expects that in the vast majority of cases the review process will not be contentious at all and the end result will be agreed between the parties and accepted by the Commission. In the event of contested issues, however, the usual adversarial model will apply . In a s19 review of an award it will always be the parties to the award who are best placed to assess the requirements of the industry and those of the employers and employees affected by the particular award or awards concerned in the review. That indeed is expressly envisaged in s19(5). There is no special role provided by s19 for the Commission itself to call evidence in review proceedings or to embark upon a wide ranging investigation into the operation of a particular award or industry. We observe also that there is nothing in s19 which detracts from the ordinary approach to litigation before the Commission under the 1996 Act wherein it is a matter for the Commission to determine whether, on the material brought before it by the parties in a particular case, the requirements of the 1996 Act have been satisfied. If not satisfied, the Commission has a discretion to require more of the parties or to reject a particular approach urged by the parties - even if it is an agreed approach . Such circumstances arise not infrequently in proceedings brought under other parts of the 1996 Act, for instance when the Commission is asked to make a consent award or to approve an enterprise agreement. In so far as it was suggested there is any different role for the Commission in a s19 review, that submission is rejected. (our emphasis)

[99]

79 However, having made that observation, we consider that the Commissioner erred in concluding that a provision providing for "disciplinary leave" or stand-down without pay for breach of duty, malingering and the like, may properly be characterised as a "stand-down" provision as provided for in s 126 of the Industrial Relations Act. Section 126 provides: 126 Stand-down orders - suspension of payment of remuneration (1) The Commission may, on the application of an employer or an industrial organisation of employers, order the stand down of employees of that employer or of members of that organisation if there is no useful work for the employees because of: (a) industrial action, or (b) breakdown of machinery, or (c) any other act or omission, for which the employer or employers concerned are not responsible. (2) The Commission is to give high priority to the hearing and determination of any such application. (3) An employee who is stood down by the Commission is not entitled to any remuneration (including allowances) while stood down. However, this subsection does not apply to any allowance that the Commission considers should be paid despite the stand-down order. (4) The period during which an employee is stood down is to be regarded as a period of employment with the employer for all other purposes, including the accrual of leave and the calculation of superannuation and other entitlements. (5) A stand-down order does not apply to an employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Industrial and Commercial Training Act 1989 . The stand-down provisions contemplated by s 126 relate to a particular set of circumstances; that is, where there is "no useful work for the employee" because of certain identified matters, namely, "industrial action", the "breakdown of machinery", or "any other act or omission" in circumstances "for which the employer or employers concerned are not responsible". It is plain that the statutory provision does not purport to deal with the suspension of employees for disciplinary reasons.

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