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[2016] NSWIRComm 1028
Industrial Relations Commission (NSW)
2016-06-24
Original judgment source is linked above.
Judgment
19 Review of awards 1. The Commission is required to review each award before September 2001 and subsequently at least once in every 3 years. 2. The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards. 3. The Commission must take account of the following matters in the review of awards: 1. any decision of the Commission under Part 3 or any other test case decision of the Commission, 2. rates of remuneration and other minimum conditions of employment, 3. part-time work, casual work and job-sharing arrangements, 4. dispute resolution procedures, 5. any issue of discrimination under the awards, including pay equity, 6. any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards, 7. any other matter relating to the objects of the Act that the Commission determines. 1. The Commission must also take account of the effect of the awards on productivity and efficiency in the industry concerned. 2. During a review of awards, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed. 3. The Commission is to make such changes to awards as it considers necessary as a result of a review.
Industrial Relations Secretary
modernising' awards is an obligation to ensure that the awards are made consistent with the current statutory framework. 1. The Full Bench also cautioned at 44 that care must be taken to ensure that the award review process and the award variation processes of the Act are not to be confused: Applications brought by award parties in order to meet the needs of employers and employees in the circumstances of a particular industry or enterprise are pursued and determined in accordance with the provisions of the 1996 Act, particularly s 10, together with other applicable legislation and applicable principles, including those established in State Wage Case decisions, State decisions and test case decisions. By way of contrast, the process established by s 19 has a stated and limited purpose - namely to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards'. In s 19(3) and (4), matters which the Commission must take into account in giving effect to that purpose are specified.
Care must be taken, it seems to us, to ensure that those two processes are not confused.
1. The Full Bench considered at 44 that the award review process is not an alternative to nor a substitute for ordinary applications for new awards or variations to existing awards:
We immediately remark that it follows from this statutory framework that the review process established by s 19 of the 1996 Act gives the Commission a particular role in reviewing awards which is different to the opportunity which parties to awards themselves are given, by the other sections mentioned, to bring forward applications for the making of new awards or the variation of existing awards. Section 19 is neither an alternative to nor a substitute for such applications.
1. While s 19 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: Crown Employees (Public Service Conditions of Employment) Award 1997 [2001] NSWIRComm 22 where at [19] her Honour, Schmidt J determined:
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 s 19 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...modernise' as used in s 19(2), where the purpose of the review process is specified to be to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards'. `Modernise" is not a defined term but is a word which is used with its ordinary meaning, to be understood in its statutory context as comprehending both bringing the award up to date and making it contemporary.The Regulation
New South Wales Rural Fire Service
Public Service Association and Professional Officers Association Amalgamated Union of New South Wales
Unions NSW
Consideration and Finding
Appendix A 2016/5756 CROWN EMPLOYEES (DEPARTMENTAL OFFICERS) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/5787 CROWN EMPLOYEES (GENERAL STAFF - SALARIES) AWARD 2007 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/5848 CROWN EMPLOYEES (LIBRARIANS, LIBRARY ASSISTANTS, LIBRARY TECHNICIANS AND ARCHIVISTS) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6007 CROWN EMPLOYEES (MAJOR AND COMMUNITY EVENTS REASSIGNMENT) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6135 CROWN EMPLOYEES (PUBLIC SECTOR - SALARIES 2015) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6166 CROWN EMPLOYEES (PUBLIC SERVICE CONDITIONS OF EMPLOYMENT) REVIEWED AWARD 2009 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/6180 CROWN EMPLOYEES (PUBLIC SERVICE TRAINING WAGE) REVIEWED AWARD 2008 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6186 CROWN EMPLOYEES (SECURITY AND GENERAL SERVICES) AWARD 2012 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6242 CROWN EMPLOYEES (SENIOR OFFICERS SALARIES) AWARD 2012 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6268 CROWN EMPLOYEES (SKILLED TRADES) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6270 CROWN EMPLOYEES DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSW (ABORIGINAL HOUSING AWARD) 2012 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6281 CROWN EMPLOYEES (TRADES ASSISTANTS) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/6292 CROWN EMPLOYEES (HOME CARE SERVICE OF NEW SOUTH WALES - ADMINISTRATIVE STAFF) AWARD 2012 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6299 CROWN EMPLOYEES (TECHNICAL OFFICERS - TREASURY) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6302 CROWN EMPLOYEES (PHYSIOTHERAPISTS, OCCUPATIONAL THERAPISTS, SPEECH PATHOLOGISTS AND MUSIC THERAPISTS) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6307 CROWN EMPLOYEES (NSW DEPARTMENT OF FAMILY AND COMMUNITY SERVICES - COMMUNITY SERVICES DIVISION) AFTER HOURS SERVICE AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6308 CROWN EMPLOYEES (DEPARTMENT OF ATTORNEY GENERAL AND JUSTICE - ATTORNEY GENERAL'S DIVISION) (REPORTING SERVICES BRANCH) SOUND REPORTERS AWARD 2007 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/6315 CROWN EMPLOYEES (DEPARTMENT OF ATTORNEY GENERAL AND JUSTICE (JUVENILE JUSTICE) - 38 HOUR WEEK OPERATIONAL STAFF 2012) REVIEWED AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6323 CROWN EMPLOYEES (GENERAL MANAGERS, SUPERINTENDENTS, MANAGERS SECURITY AND DEPUTY SUPERINTENDENTS, DEPARTMENT OF ATTORNEY GENERAL AND JUSTICE - CORRECTIVE SERVICES NSW) AWARD 2009 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6328 CROWN EMPLOYEES (NSW DEPARTMENT OF TRADE AND INVESTMENT, REGIONAL INFRASTRUCTURE AND SERVICES) CASINO INSPECTORS TRANSFERRED FROM DEPARTMENT OF GAMING AND RACING AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6332 CROWN EMPLOYEES (NSW DEPARTMENT OF TRADE AND INVESTMENT, REGIONAL INFRASTRUCTURE AND SERVICES) EXHIBITION PROJECT MANAGERS AND PROJECT OFFICERS) AUSTRALIAN MUSEUM AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/6949 CROWN EMPLOYEES (NSW DEPARTMENT OF TRADE AND INVESTMENT, REGIONAL INFRASTRUCTURE AND SERVICES) MUSEUM OF APPLIED ARTS AND SCIENCES - CASUAL GUIDE LECTURERS AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6952 CROWN EMPLOYEES (NSW DEPARTMENT OF TRADE AND INVESTMENT, REGIONAL INFRASTRUCTURE AND SERVICES) STATE LIBRARY SECURITY STAFF AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6975 CROWN EMPLOYEES (DEPARTMENT OF EDUCATION AND COMMUNITIES - SERVICES OFFICERS) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6989 CROWN EMPLOYEES (SCHOOL ADMINISTRATIVE AND SUPPORT STAFF, GENERAL ASSISTANTS IN SCHOOLS) STANDDOWN AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/6990 CROWN EMPLOYEES (NSW POLICE FORCE SPECIAL CONSTABLES) (POLICE BAND) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/7043 CROWN EMPLOYEES (CENTENNIAL PARK AND MOORE PARK TRUST BUILDING AND MECHANICAL SERVICES STAFF) AWARD 2012 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/7047 CROWN EMPLOYEES (NSW POLICE FORCE SPECIAL CONSTABLES) (SECURITY) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7052 CROWN EMPLOYEES HISTORIC HOUSES TRUST (GARDENS - HORTICULTURE AND TRADES STAFF) AWARD 2007 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7055 CROWN EMPLOYEES (JENOLAN CAVES RESERVE TRUST DIVISION) SALARIES AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7064 CROWN EMPLOYEES (RURAL FIRE SERVICE) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7065 CROWN EMPLOYEES (LORD HOWE ISLAND BOARD SALARIES AND CONDITIONS 2009) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/7073 CROWN EMPLOYEES (PARKS AND GARDENS - HORTICULTURE AND RANGERS STAFF) AWARD 2007 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7074 CROWN EMPLOYEES (RURAL FIRE SERVICE MAJOR INCIDENT CONDITION 2011) INTERIM AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7079 TARONGA CONSERVATION SOCIETY AUSTRALIA SALARIED EMPLOYEES AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7080 CROWN EMPLOYEES (SENIOR ASSISTANT SUPERINTENDENTS AND ASSISTANT SUPERINTENDENTS, DEPARTMENT OF ATTORNEY GENERAL AND JUSTICE - CORRECTIVE SERVICES NSW) AWARD 2009 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7087 CROWN EMPLOYEES (SHERIFF'S OFFICERS) AWARD 2007 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996 2016/7094 CROWN EMPLOYEES (TIPSTAVES TO JUSTICES) AWARD 2007 Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
2016/7105 CROWN EMPLOYEES (DEPARTMENT OF EDUCATION AND COMMUNITIES - CATERING OFFICERS) AWARD Notice of Award Review issued pursuant to section 19 of the Industrial Relations Act 1996
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2016
Public Service Association and Professional Officers' Association Amalgamated of NSW
Director of Public Employment
[1998] NSWIRComm 661
(1998) 85 IR 38
(2012) 87 ALJR 162
(2012) 293 ALR 450
(2012) 228 IR 316