Real Estate Industry (Clerical and Administrative Employees) (State) Award, Re [2003] NSWIRComm 149

APPELLANT: Mr J V Murphy of counsel INSTRUCTED BY: Federated Clerks' Union of Australia, New South Wales Branch

FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr R Warren of counsel INSTRUCTED BY: Real Estate Employers' Federation of New South Wales

SECOND RESPONDENT: Ms T Marshall Employers First

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President MCLEAY C Friday 23 May 2003

Real Estate Industry (Clerical and Administrative Employees) (State) Award.

Application by the Federated Clerks' Union of Australia, New South Wales Branch for Leave to Appeal and Appeal against a decision of Commissioner Neal given on 21 December 2001 in Matter No IRC 4412 of 1999.

DECISION OF THE COMMISSION [2003] NSWIRComm 149

1 This matter concerns an application for leave to appeal and, if leave be granted, appeal by the Federated Clerks' Union of Australia, New South Wales Branch against a decision of Commissioner Neal given on 21 December 2001 in which the Commissioner dealt with two applications brought by the Real Estate Employers' Federation of New South Wales (the "first respondent"). The first of those applications sought a new award be made, relating to clerical and administrative employees in the real estate industry, entitled the Real Estate Industry (Clerical and Administrative Employees) (State) Award. The second application sought consequential variations to the Clerical and Administrative Employees (State) Award (the "Clerks' award"). It was common ground, prior to the Commissioner's decision, that the terms and conditions of employment for clerical and administrative employees in the real estate industry were provided by the Clerks' award.

2 The substantive application for a new award brought by the first respondent sought significant changes to the terms and conditions provided in the Clerks' award. For present purposes, it is sufficient to identify the variations sought by reference to the description of the application given in the Commissioner's decision: Mr Patterson took the Commission through the major changes incorporated in REEF's proposed new award:

Clause 4, Terms of Engagement, includes a provision which provides that all listing documents and records used in the employer's business are to remain the property of the employer. This was said to be necessary given the particular importance that employers' rent rolls and other documents have within the real estate industry.

Clause 5, Classification Structure and Wages - Whilst there are no changes proposed to the grading structure within the existing award, the new award will remove the Saturday loading currently prescribed. This deletion is on the basis that the new award would provide penalties of 25% extra for Saturday work and 50 percent extra for Sunday work. Within this clause there is also a reduction in the casual minimum shift from four hours to three hours.

Clause 6, Hours - The existing clause is one that REEF says is complex, ambiguous and restrictive. Maximum hours remain at 38 hours per week over no more than five and one half days in any seven day period. However, the spread of hours has been changed from 6.00am until 6.00pm to 7.00am until 7.00pm in the new award. In this respect REEF says that there has been no change in the extent of spread and that 7.00am to 7.00pm is a more appropriate and acceptable standard for the real estate industry. The clause also allows hours to be averaged over a two week period, and part-time provisions have been inserted which are said to be consistent with the Part-time Work Test Case.

Finally, REEF has removed shift work provisions completely from the award on the basis that they are seen as unnecessary in this industry at the present time. In respect to Sundays and holidays, REEF's application removes an entitlement to an additional holiday prescribed by the existing award which is known colloquially as "union picnic day". This has been replaced with the provision that Easter Sunday a special holiday for the real estate industry and an additional provision for local show days in regional centres has been included.

Clause 13, Overtime and Meal Allowance - The significant change is the removal of the current requirement for payment of double time for each hour worked after 12.00 Noon on Saturdays and on Sundays.

Clause 28, Superannuation - The Current provisions have been altered by deletion of what are described as irrelevant superannuation funds and the insertion of a reference to the CARE Real Estate Industry Superannuation Fund.

Clause 39, Savings Clause - This clause has been inserted to protect the income of employees engage with an employer at the time the award is made and obviously recognised the additional payments such employees might have been entitled to in respect to weekend work, for example.

3 The other major aspect of the application related to variations to existing part-time and casual work arrangements. In this respect, Clause 8 of the Clerks' award required part-time employees to be engaged on regular days and regular hours. In addition, there was a proviso that "such days shall not be less than two per week and such hours shall not be less than 12 per week". The application sought to remove these restrictions and to insert in their place a requirement that persons engaged on a part-time basis be engaged for a minimum of three hours. No restriction was provided in relation to the number of days per week. As for casual employment, the Clerks' award provided for a minimum payment per period of engagement of four hours work at the appropriate rate. The application sought to reduce this minimum period to three hours.

The Challenged Decision 4 Having set out the relevant background to the proceedings and having recorded that the applications before him sought "fundamental changes to existing provisions" of the Clerks' award based on a view that "the current prescriptions [were] no longer appropriate for an industry … now operative over seven days of the week", the Commissioner noted that from the outset "the union adopted an unusual approach in that, whilst opposing the applications, it chose not to cross-examine the 11 employer witnesses and declined to call witnesses itself".

5 Turning to the evidentiary material, the Commissioner recorded that the employers led evidence from "a range of real estate practices, both in terms of size (turnover and number of employees) and in location (city, suburban and country)", which the Commissioner considered contained an "overriding theme" to the effect that "consumer expectation" had led to "a large number of real estate agencies" operating seven days per week; that many did so without engaging clerical and administrative employees due to "prohibitive cost considerations" associated with the payment of overtime rates; and that "offices which did not open over seven days said they would do so if clerical costs were not prohibitive". The Commissioner again emphasised that "none of this evidence was the subject of cross-examination by the Union".

6 The decision then summarised the submissions of the parties. It is unnecessary to canvass the position of the parties below at length, it being sufficient to observe that the first respondent contended the real estate industry had now developed so as to be truly identifiable as a seven day per week industry. On its contention, two fundamental questions were raised by the two applications: first, did the existing hours arrangements in the Clerks' award provide the "necessary flexibility for the industry to operate effectively in a contemporary commercial environment"; second, whether in ensuring that the award provided this flexibility, there should be some relaxation of the current restrictions which apply to the engagement of part-time employees under the existing award.

7 In relation to the first of these issues, the applicant below contended that the Clerks' award contained "unacceptable rigidities" which "unfairly restricts attempts at improving business efficiency"; in particular, the incapacity to employ full time employees at "ordinary hours" rates on a weekend.

8 The appellant resisted the applications on the basis that the Clerks' award, when one has regard to the history of the relevant provisions, already provided the relevant flexibility to engage persons on ordinary hour rates on weekends. On the union's contentions, the applications to create a new award were brought on a false premise. As for the application seeking to vary the Clerks' award, the union contended the application was more properly dealt with as an exemption application under s18 of the Industrial Relations Act 1996 ("the Act") rather than an award variation. In this regard, it was contended that the requirement to have regard to the "best interests of employees" was avoided by reliance on the award variation provision.

9 Having summarised the parties submissions, the Commissioner turned to his "consideration". In relation to the application for a new award, the Commissioner noted that the matter proceeded by way of Special Case pursuant to the Wage Fixing Principles and that the Commission was bound to "apply structural efficiency considerations". The Commissioner then stated: In considering the evidence in this matter, it must be remarked again that the Union has adopted a most unusual approach to these proceedings. Whilst opposing the REEF application, the Union has chosen not to cross-examine the employer witnesses and has chosen not to bring evidence of its own. In those circumstances, the Commission has received the evidence given without contradiction by the Union. Whilst the Union has argued that the employer witnesses should not be regarded as representative of the Industry, the trouble I have with that submission is that the Union, for its own reasons, has chosen not to call evidence of its own. The witnesses in these proceedings came from a range of real estate offices including inner city, suburban and country real estate agencies. In addition, the offices ranged from small agencies to larger agencies.

The consistent evidence adduced in the proceedings was to the effect that there is now a public demand for real estate agencies to be opened over seven days of the week and that for the efficient operation of those offices, there was a need to employ clerical staff within those offices on weekend days. Witnesses said that their offices were either open seven days without clerical staff or that they would be open except for what they regarded as the prohibitive cost of employing clerical staff in their offices on weekend days. Reasons given for the necessity to be open on weekends included the fact that work patterns in the community have changed to the point where many families could not access real estate agencies during ordinary hours, Monday to Friday.

On the basis of the evidence available, I am satisfied that the real estate industry is now one which trades over seven days of the week and that it is fundamentally important that those offices to be able to be staffed by clerical officers when opened on the weekend.

10 Neal C referred to having "difficulty" with the contentions on behalf of the union in relation to the availability of shift work arrangements, and in particular the definition of a seven day shift worker in cl 7 of the Clerks' award, to provide flexibility for a seven day per week roster, stating: There is no reference to Saturdays in the award and I have some trouble accepting the Union's argument that the omission of Saturday is an anomaly or even a "typo". In my view the expression seven day shift worker has no reasonable application within the real estate industry and I do not accept that these provisions are applicable for ordinary hours worked on weekends by clerical and administrative employees in real estate offices.

11 The Commissioner considered that he was "required to have regard to issues of efficiency and productivity" and that he had to be satisfied that "the application would be productive" as well as having regard to "the impact of the proposed changes on employees", before continuing: The major effect of the REEF application is the provision of penalties for working ordinary hours on the weekend. On the basis of the evidence presented to me, I am satisfied that the real estate industry is now one where there is a demand for real estate offices to be open seven days of the week. I am also satisfied on the basis of the evidence adduced in these proceedings that the current prescriptions in respect to payment of overtime for time worked after 12.00 Noon on Saturdays are impediments to real estate offices opening over seven days. The REEF application will in my view satisfy Special Case Considerations and will introduce greater efficiency and productivity within the industry by allowing the rostering of clerical and administrative staff to work their ordinary hours over seven days of the week. There is also the prospect of greater employment opportunities for existing staff who may wish to rearrange their hours on weekends and it may provide an opportunity for expanded employment within the industry generally. In so far as there might be an effect on the conditions of existing employees within the industry I note that the REEF application contains in Clause 39, Savings Clause, a provision to the effect that "existing employees employed by an employer prior to the making of this award shall not suffer a reduction in their weekly wage by the making of this award". I consider that the changes in the nature of this industry are such that work on weekends is now commercially necessary and my view is that common industry standards in respect to payment for ordinary hours worked on weekends should apply. In this respect I accept the argument put on behalf of the employers that the present requirement to pay overtime rates for weekend work to clerical and administrative employees is expensive and prohibitive. On this basis I accept that current standards in the industry are that ordinary hours worked on weekends are paid at the rate of 25 percent extra on Saturdays and 50 percent extra on Sundays. I therefore, approve of this aspect of the REEF application.

12 Turning then to the issues surrounding the part-time work provisions, Neal C noted "again the Commission was confronted with a situation where the Union chose not to cross-examine the employer witnesses and chose not to bring evidence itself". He accepted the evidence that "both employers and employees in the industry find the existing part-time provisions inflexible and restrictive", noting that "evidence in these proceedings was to the effect that a number of employees would wish to work on only one day per week", before concluding "in this context I can see no reason why I should not approve of REEF's application which inserts a consistent provision in the proposed award". The Commissioner continued to refer to the savings clause identified above, concluding "in my view this is an appropriate way to implement changes of the nature proposed within the industry whilst preserving the entitlements of existing employees".

13 As to the issues surrounding the minimum engagement for casual employees and those surrounding the deletion of the shift work provisions in the proposed award, the Commissioner considered "for reasons of consistency", it was appropriate to reduce the four hour minimum payment for casual employees to three hours at the appropriate rate, and to delete completely the shift work provisions.

14 The Commissioner refused that aspect of the application seeking removal of the "local show day", colloquially referred to as "union picnic day" clause.

15 The Commissioner also considered that it was appropriate to change the daily span of hours from 6.00am to 6.00pm to 7.00am to 7.00pm, concluding: I am persuaded, on the basis of the matters put to me during these proceedings that the application by REEF is a reasonable and appropriate one in the circumstances of this industry. 16 Consequential changes were made in relation to the meal allowance provisions, altering the entitlement for a meal allowance to flow from work after 7.00pm as opposed to 6.00pm, so as to make it "consistent with the span of hours proposed by REEF and approved by the Commission".

17 The Commissioner concluded, "on balance" that it "would be appropriate to make an award as sought by REEF", subject to alterations referred to in the Commissioner's decision, "with effect on and from the beginning of the first pay period to commence on or after 1 March 2002", effective for a period of two years from that date. The application to vary the Clerks' award by removing coverage for persons covered by the Real Estate Industry (Clerical and Administrative Employees) (State) Award was also granted to operate on and from the same date.

18 The appeal was directed to three aspects of the challenged decision:

(1) The approval of that aspect of the employers application which provided loadings for ordinary hours worked on weekends, at time and one quarter on Saturdays and time and one half on Sundays; (2) The approval of the application insofar as it altered the existing provisions for part-time employment from a minimum of twelve hours worked over at least two days, to a minimum of three hours work per day with no minimum number of days worked; and (3) The approval of the application insofar as it reduced the minimum payment per shift for casual employees from four hours to three hours.

19 There was no issue raised as to the making of a new or separate award for clerical employees in the real estate industry and the variation of the Clerks' award for that purpose.

20 Mr J V Murphy of counsel, who appeared for the appellant, contended that nothing in the applications by REEF was designed to enhance flexibility, efficiency or productivity and that in reality, the applications were nothing more than a negative cost cutting measure of the type criticised in the decision in the National Wage Case - August 1989 (1989) 30 IR 81. On counsel's submission, the employers' case was premised on a misapprehension as to the flexibilities already found in the Clerks' award and that the evidence of the respondents' witnesses, operating as they were under a misapprehension as to the terms of the award, was "entirely besides the point". It was submitted that the award provided that where persons were engaged on weekends, even where such work was within the average of 38 hours for a full time employee (i.e. ordinary hours), the appropriate rates were those provided in clause 7 of the award - that is, time and one half for Saturdays and time and three quarters for Sundays. The employers case was based on the false premise that the award required persons engaged on weekend work, extending beyond noon on Saturday, be paid at overtime rates.

21 When seen in that way, the appellant contended, the Commissioner reduced what was a pre-existing award entitlement for weekend work of time and one half on Saturdays and time and three quarters on Sundays, to time and one quarter and time and one half respectively, without any countervailing benefit to employees.

22 On the appellant's submission, there were two bases identified in the decision supporting this outcome. Firstly, the evidence of the employer witnesses as to the existing flexibilities in the Clerks' award and the "prohibitive cost" of paying overtime for weekend work, and secondly, the "standard" loading for weekend work which the employers contended was to be drawn from a series of decisions. As to the first of these bases, Mr Murphy contended that the employer evidence was "so vague and imprecise and lacking in any mathematical rigour, as to be of no probative value", and was given on a misunderstanding of the award provisions. As to the second, the series of cases relied upon by the respondents' did not establish "standard" rates for weekend work, lower than those provided in In Re Shift Workers Case 1972 [1972] AR (NSW) 633. The Commissioner's variation to the award was underpinned by an erroneous construction of the Clerks' award and warranted intervention on appeal.

23 As to the issues surrounding the variations to part-time work arrangements, the evidence before the Commissioner did not justify altering the pre-existing award minimum of 12 hours per week on not less than two days, to a minimum of three hours per day with no minimum number of shifts per week. On counsel's submission, such an alteration "further marginalises the position of part-time workers without any countervailing benefit". It was submitted the State Part-Time Work Case (1998) 78 IR 172 provided no basis for the reduction of existing award protections for part-time employees - the award already provided that employers were able to engage persons in accordance with the minima provided for in that test case. There was no reason based on the evidence or in principle for reducing the award minima for part-time employees to the test case minima in relation to these matters. In particular, it was contended that employers could engage employees for a single day per week under the Clerks' award by engaging the person as a casual. Such employees can be utilised for a minimum of four hours on one day per week, however they are entitled to a casual loading of 20 per cent see clause 5 of the Clerks' award.

24 Further, the Commissioner "for reasons of consistency", reduced the minimum payment for casual employees from four to three hours, in line with his decision in relation to part-time employees. There was no evidence to support that variation.

25 Whilst Mr Murphy did not oppose the creation of a separate award to cover clerical and administrative employees employed in the real estate industry, and did not dispute that the real estate industry was properly seen as a seven day per week industry, he emphasised the Clerks' award applied across a wide range of industries and has been scrutinised by the Commission over many years and in a number of contexts, including structural efficiency reviews. The decision of Commissioner Neal represented a significant reduction in existing award terms and conditions without any countervailing benefit to employees. Leave to appeal should be granted and the appeal upheld.

26 Mr R Warren of counsel, who appeared on behalf of the first respondent, contended that leave to appeal should be refused as the appeal raised no issue of such importance as to warrant the grant of leave to appeal in the public interest. On his submission, there were only two matters which the appellant identified that could warrant the grant of leave; the allegation that the decision of the Commissioner was contrary to the decision of the Full Bench in In Re Shift Workers Case 1972 and the allegation that an erroneous decision may be used as a precedent in future proceedings. On Mr Warren's submission, the Commissioner's determination was consistent with the standards established in the Shift Workers case. Further, the matter was determined as a special case which, of its very nature, raises issues peculiar to the relevant proceedings. Any decision in a special case proceedings will, for that reason alone, be of little, if any, precedent value. Leave to appeal should be refused.

27 An appeal to the Full Bench is not by way of a new hearing and is to be determined on the evidence and material adduced at first instance: s191(3) and Big W Stores v Donato (1994) 58 IR 239. In order for the appellant to succeed, it must demonstrate that the Commissioner made an error of law or erred in the exercise of discretion to such an extent as to warrant correction on appeal.

28 On counsel's submission, the decision under appeal clearly demonstrated the Commissioner examined all relevant evidence and displayed a clear understanding of the case advanced by the respective parties. He properly concluded, noting the manner with which the appellant conducted the case at first instance, that the real estate industry was now properly regarded as a seven day per week industry and that it was "fundamentally important" for real estate offices to be staffed with clerical employees on weekends. The Commissioner, in accordance with the evidence, properly determined that the provisions of the Clerks' award were an "impediment" to the real estate industry operating on a seven-day per week basis. These findings were clearly open on the evidence at first instance.

29 The appellant's case, both at first instance and on appeal was, on Mr Warren's submission, based upon a misapprehension of the provisions of the Clerks' award. Those provisions quite plainly provide that clerical and administrative employees employed after 12 noon on Saturday, or on Sunday, are required to be paid overtime rates. This work could not, in accordance with the award terms, be a paid as ordinary time. Further, it was contended that employees engaged in real estate offices do not work in accordance with the shift work provisions in clause 7 of the Clerks' award, and as such, the shift work provisions have no application. Simply put, it was contended that the persons engaged in the real estate industry do not work shifts and as such have no application to employees working day work on weekends in real estate offices. The appellant's case in this regard is misconceived.

30 Further, the evidence at first instance clearly demonstrated that the real estate industry was operating on a seven day basis and that it was necessary for employers to engage clerical staff on weekends. It was available, on the evidence, to conclude that greater flexibility was needed in the conditions on which clerical staff are engaged. Commissioner Neal's decision was an appropriate exercise of discretion and was in accordance with the evidence at first instance.

31 As to the variations to the part-time work arrangements, Mr Warren contended that the Commissioner's decision was consistent with the State Part-time Work Case and was available on the evidence. It was a proper exercise of the Commissioner's discretion.

32 Similarly, with respect to the findings in favour of the respondents' application in relation to casual employment, Mr Warren contended that it would have been "inconsistent with the overwhelming evidence" of the respondents for the Commissioner to have refused the application to vary the minimum engagement of casual employees from four hours to three hours. Again, it was contended that this was a proper exercise of the Commissioner's discretion. The appellant has failed to demonstrate any appellable error in the Commissioner's decision and the appeal should be dismissed.

33 Finally and in the alternative, Mr Warren submitted that were the appeal to succeed, any order of the Full Bench should not have retroactive effect as no stay of the Commissioner's decision was sought.

34 Ms T Marshall, who appeared for the second respondent, joined in the submissions of the first respondent in contending that leave to appeal should be refused as the appeal was not of such importance as to warrant the grant of leave to appeal in the public interest. Additionally, Ms Marshall contended that "the loadings granted by the Commissioner in his decision for weekend work are consistent with the well established standards set by this Commission". It was contended that the uncontroverted evidence before the Commissioner demonstrated a need to operate on a seven day basis.

35 Having regard to the uncontested evidence and the authorities relied upon, it was open for the Commissioner to provide loadings in the amounts provided in the decision. The appeal should be dismissed.

Leave to Appeal 36 Appeals to the Full Bench of the Commission may only be brought by way of leave: s188(1). Leave to appeal will be granted where the appeal raises matters of such importance as to warrant the granting of leave in the public interest: Knowles v Anglican Church Property Trust (No2) (1999) 95 IR 380 at 381 - 382.

37 Mr Murphy of counsel, who appeared for the appellant, contended that leave ought be granted in these proceedings, for essentially two reasons:

(a) The Commissioner erred in the construction of the Clerks' award, which led him to accept the contentions of the respondents alleging the inflexibilities and economic inefficiencies the award was said to create in the real estate industry. On the appellant's contentions, this error was of itself significant and warrants the granting of leave in the public interest as the award made by the Commissioner had diminished the entitlements of persons employed in a clerical capacity in the real estate industry, without providing any consequential benefit; (b) The Clerks' award is one of the more significant awards within the purview of the Commission's jurisdiction. The erroneous construction placed on the award, if relied upon as a precedent in future decisions, has the potential to effect the conditions under which a significant number of persons in this State are employed. Whilst there may be idiosyncrasies that are particular to the circumstances of the present case which limit any precedent value of the present case, the construction placed of the award is a matter of law and its precedent value is not confined by evidence particular to the present case.

38 Mr Warren contended that the decision of the Commissioner was determined having regard to the particular evidence led in these proceedings. These proceedings were by their very nature a special case, idiosyncratic and could be of little, if any, precedent value. Further, the evidence in the case was all one way. The appellant did not cross-examine the respondents' witnesses, nor did it lead evidence of its own. Mr Warren contended that the union, for its own reasons, conducted the case in that way and it is bound by the conduct of its case at first instance. Leave to appeal should be refused. The first respondents' submissions on leave were joined by the second respondent.

39 It is a well settled and entirely unexceptional proposition both in the Commission, and in courts of general jurisdiction, that an appellant is, to a significant extent, confined by the manner with which their case was presented at first instance: see for example Sawyer v Cutler-Hammer Pty Ltd [2002] NSWIRComm 233 at [4] and Coulton v Holcombe (1986) 162 CLR 1. This is of particular significance to an appeal brought before a Full Bench of the Commission under Part 7 of Chapter 4 of the Industrial Relations Act as the appellate mechanism there established, "gives primacy to first instance decision-making in a manner not earlier found in industrial legislation in this State": see Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393. Thus, the appellant in this matter is bound to the inexplicable and ultimately detrimental approach adopted by its representative at first instance not to call evidence of its own, or the challenge the respondents' evidence in the proceedings. It cannot be heard to complain now, when many of its difficulties stem from this situation.

40 These considerations become all the more significant when regard is paid to the circumstance that the present proceedings were being determined as a special case, pursuant to the Commission's wage fixing principles, which of their very nature, fall to be determined by reference to the "special attributes" of the proceedings which take the matter outside the restrictions which may otherwise apply under the wage fixing principles: Re Operational Ambulance Officers (2001) 113 IR 384 at [166]. The determination whether these attributes exist in a particular case is a matter of evidence for which the applicant bears the onus: see Re Operational Ambulance Officers at [168]. The fact that special case proceedings will be heavily reliant upon the particular features of the particular case, significantly limit the potential for a decision in a special case proceeding to be utilised as a precedent for any future proceedings - a matter long recognised as an important consideration in the granting of leave to appeal: see Knowles v Anglican Property Church Trust.

41 However, we consider that the following exceptional features of this matter warrant the grant of leave to appeal.

1. The respondents raise in their case that there exist general standards for penalties for weekend work and the Commissioner's decision properly represents these standards; 2. The Clerks' award provides the foundation for the terms and conditions of employment for a number of persons in this State and, in particular, a significant number of persons engaged in the real estate industry. The appellant alleges error in the construction of key or elemental provisions of that award; 3. We have concluded that the Commissioner erred in granting all of the applications at first instance and that the errors concerned matters having implications generally for industrial jurisprudence under the Industrial Relations Act.

42 It should be emphasised that much of the difficulty presented to the Commissioner at first instance and to the Full Bench on appeal, arose as the result of the "most unusual" and hopefully never to be repeated manner with which the appellant conducted its case at first instance. As the Commissioner repeatedly recognised in his decision, the failure of the union to cross-examine the witnesses of the employers or to lead its own evidence in support of its opposition to the claim, left him in the unenviable position of having to determine contested proceedings concerning important industrial issues concerning the conditions of employment of very many persons working in the industry, without proper assistance.

43 Whilst the appellant's case was premised on a particular construction of Clerks' award, it was not, in our view, sufficient for it to contend, merely by way of submission, that the evidence of the employers was not sufficiently representative or that it did not cover other potential applications of the Clerks' award. As was emphasised recently by the Full Bench in Public Hospital Nurses (State) Award (2002) 115 IR 183 (at [14] - [16]), an applicant in a special case cannot be expected to call evidence from every relevant employer or organisation in the State, and it is to be expected that it would put forward evidence representing its "best case" in support of its claims. If the evidence is not sufficiently representative of an industry, the evidence may be insufficient to support a claim of general application in an award. However, it is ultimately a matter for the Commission to judge, on the evidence considered as a whole, whether the evidence relied on by an applicant is sufficiently representative to support the granting of a claim that will have general application. The validity of these evidentiary issues can only be measured by reference to any contradictory evidence or other material.

44 The Full Bench in Re Pastoral Industry (State) Award (2001) 104 IR 168, having observed that in a special case "the onus which falls on an applicant in such proceedings is well settled" and that "in a special case an applicant must meet the ordinary onus to make out its case on the evidence" (referring in this respect to Occupational Health Nurses' Superannuation (State) Award (1996) 85 IR 158 and Teachers (Non-Government) (Schools) (State) Award and other Awards (unreported; Fisher P, Sweeney J, Varnum DP; 17 August 1990), emphasised that "the applicant in a special case has a particular onus … [and] … that onus must be met in the context of the requirements of s10 of the Act". The decision continued: 76 All of this means that in considering the substantial changes here sought from the current award arrangements, the Commission must be satisfied that in granting the application, it would be making an award which meets the statutory obligation in s10 to make an award 'fixing fair and reasonable conditions of employment' (and which conforms with the objects of the Act). 77 Existing award conditions are, of course, not immutable. Subject to compliance with the requirements of the Act and applicable principles, they can be varied upon the basis of the consent of the parties, or in the case of contested proceedings, if a case is made out on the evidence, upon the basis that the award conditions in question no longer provide fair and reasonable conditions of employment. In a contested case, the onus falls on the applicant to make out a case for an alteration to an award, which otherwise will remain undisturbed.

45 As to the issues concerning weekend work arrangements and penalty rates, Commissioner Neal plainly had regard to the sufficiency of the material before him, having recorded that the employers evidence was from "a range of real estate practices, both in terms of size (turnover and number of employees) and location (city, suburban and country)". He concluded that the "over-riding theme" of that evidence was that the real estate industry, if not before, was now operating as a seven day per week industry and that weekend work was properly seen as "a commercial necessity". Further, on the basis of the evidence before him he concluded that it was "fundamentally important" for clerical employees to be engaged in those agencies which opened on weekends. These conclusions were reasonably open on the evidence before the Commissioner.

46 The Commissioner considered that the case put forward by the employers did satisfy "special case considerations" and that granting the employers' claim would "introduce greater efficiency and productivity within the industry by allowing the rostering of clerical and administrative staff to work their ordinary hours over seven days of the week". This was, in the Commissioner's view, balanced by the "protection" afforded employees in clause 39 of the proposed award. The Commissioner rejected the contentions of the appellant to the effect that the award already provided sufficient flexibility to work on weekends at ordinary hour rates by the use of the shift worker provisions, and accepted the contentions of the employers "that the present requirement to pay overtime rates for weekend work to clerical and administrative employees is expensive and prohibitive". On this basis he considered it appropriate to grant the respondents' application so far as it provided for variations to the patterns of work available under the Clerks' award. It must be remembered that this conclusion was formed on the basis of entirely uncontested evidence put forward by the first respondent. It is not difficult to contemplate the types of evidentiary issues that would arise in an ordinary contested case in relation to matters of this sort. None of these issues were considered by the Commissioner, nor was he required to consider them, as the appellant put no case in that regard.

47 Having established that the evidence demonstrated it was "now commercially necessary" that greater flexibility should be afforded so as to permit work on weekends to be performed at "ordinary hour" rates, the Commissioner accepted "that current standards in the industry are that ordinary hours worked on weekends are paid at the rate of 25 per cent extra on Saturdays and 50 per cent extra on Sundays".

48 We are not satisfied that the Commissioner approached the proceedings on the basis that there was some broad standard established as to the appropriate loadings for weekend work. If the Commissioner had approached the matter in that way we consider that he would have been in error. However, in referring to "current standards in the industry", we consider that the Commissioner was referring to the contemporary environment in which real estate agencies are to be found, including retail complexes and shopping centres, and the terms and conditions upon which persons are engaged in that environment.

49 Moreover, as was properly conceded by Mr Murphy, it was not put to the Commissioner that as a matter of merit, were the appellant's contentions on the construction of the shift-worker provisions of the Clerks' award unsuccessful, that loadings of 50 per cent on Saturdays and 75 per cent on Sundays should apply in any event. When seen in that way, the case for the appellant below and on appeal, at least in so far as it related to the appropriate loading for weekend work, was put on an "all or nothing" basis which depended on its construction of the Clerks' award. Whilst we have some doubts that there was no way, other than by the application of the shift-work provisions in clause 7 of the Clerks' award, for clerks covered by that award to be engaged on weekend work at ordinary time rates, we are not satisfied that the Commissioner erred in concluding that the shift work provisions within the Clerks' award were not applicable to the pattern of employment in the real estate industry as disclosed in the evidence. The Commissioner's determination in this regard was made having regard to the uncontested evidence before him and we find no error in his determination.

50 The Commissioner concluded that it was appropriate on the evidence to provide for "ordinary hours worked on weekends …[to be]… paid at the rate of 25 per cent extra on Saturdays and 50 per cent extra on Sundays". Due to the manner with which the case was conducted by the appellant at first instance, there was no real contest on the merit of such a provision. There is therefore no proper basis upon which the Full Bench may intervene. However, it should be emphasised, having regard to the basis upon which the case was presented on behalf of the respondents, this determination was made in light of the very particular circumstances of the special case presented at first instance. As was conceded by all parties to the appeal, for this reason alone, the case does not stand as an authoritative determination of appropriate penalty rates for weekend work, perhaps even for this industry. Nor, we would add, does it necessarily represent our view on what constitutes "fair and reasonable conditions" as reflected by a proper application of s10 of the Act. The determination on appeal simply reflects the proper and usual application of appeal principles and, in particular, a reflection of the nature of an appeal under Part 7 of Chapter 4 of the Act: see for example King v State Bank of New South Wales [2002] NSWIRComm 353.

51 The appellant also alleged error as to the manner in which the Commissioner approached the part-time and casual work arrangement issues. In particular, it was alleged that the Commissioner erred by removing the requirement in the Clerks' award that persons engaged on a part-time basis work "not … less than 2 [days] per week" and for "not … less than 12 [hours] per week", and also in the removal of the "minimum payment of four hours' work at the appropriate rate" as the minimum engagement period for casual employees. The appellant contended that the evidence in these proceedings "did not justify the alteration" in the existing provisions. The respondents contended that the determination in this regard was consistent with the evidence before the Commissioner and as such, the Full Bench should not intervene. We consider, however, that the submissions of the appellant have substance.

52 It was not in contest that the Clerks' award was the applicable award regulating the conditions of employment for persons engaged in a clerical capacity in the real estate industry. The evidence on behalf of the employers demonstrated what counsel for the first respondent referred to as a "double whammy"; that is, under the Clerks' award, on the contentions of the respondents, part-time workers and casuals were unable to work on weekends without being paid at overtime rates, as the Clerks' award did not provide for work on weekends other than by way of overtime (leaving aside for the present the Saturday morning and the shift work provisions), and that overtime requirement was coupled with the minimum number of day and hour requirements for the respective category of employee.

53 In having granted the application of the employers, so far as it extended to permitting the engagement of employees on weekends at ordinary hourly rates, the Commissioner had removed the first component of these dual entitlements. Thus, in granting that aspect of the application, the Commissioner permitted part-time employees and casuals to be engaged on weekends at ordinary hourly rates.

54 The Commissioner accepted the proposition that "both employers and employees in the industry find the existing part-time provisions inflexible and restrictive". Having referred to the relevant provisions of the Clerks' award, he held: Evidence in these proceedings was to the effect that a number of employees would wish to work on only one day per week and I was referred by Mr Patterson to the provisions of the Part-time Work Test Case conducted by the Commission in 1997. In those proceedings the Commission determined a start of three hours per day for part-time employees. In this context I can see no reason why I should not approve of REEF's application which inserts a consistent provision in the proposed award.

55 The appellant contended that there was nothing in the State Part-Time Work Case to warrant a reduction in the long standing protections afforded employees in the real estate industry under the Clerks' award, nor was there anything in the evidence in these proceedings that warranted that conclusion. We would agree with the contention that the minimum conditions established for individual part-time work arrangements under Part 5 of Chapter 2 of the Act, as established by the Full Bench in the State Part-Time Work Case, are not necessarily an appropriate bench-mark against which against to measure the conditions of employment provided in a particular industrial instrument, including one of general application.

56 The Commissioner's decision does not disclose any consideration of whether, having decided to remove the requirement to pay overtime rates for persons engaged on weekends, it was necessary or appropriate, in light of the evidence, to adjust the part-time and casual employee conditions. Whilst it must be recognised that terms and conditions within an award are not immutable, as we have emphasised above, in order to enable the variation of existing conditions, there must be evidence which, on the ordinary standard, is sufficient to displace the presumption that current conditions of employment within an award are "fair and reasonable": see s10 of the Act, Re Pastoral Industry (State) Award at [77], Re Operational Ambulance Officers (State) Award, Public Hospital Nurses (State) Award, Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361 and Re Club Employees (State) Award. Whilst the approach of the appellant undoubtedly and significantly contributed to the difficulty faced by the Commissioner in deciding this matter, we have concluded that the evidence before him was insufficient to displace the presumption that the minimum engagement provisions for part-time employees continued to provide fair and reasonable conditions of employment (particularly where rates for weekend work had been altered significantly).

57 Turning to the variations made to the casual employee work arrangements, the only reason identified for the determination to reduce the casual minimum engagement from four hours to three, was "consistency" with the determination as to part-time employees. As we have concluded that the Commissioner erred in reducing the minimum part-time engagement and, having regard to the lack of any other apparent justification for reducing the casual minimum engagement identified in the decision at first instance, it is appropriate that the appeal be upheld in relation to this matter.

58 Since the Real Estate Industry (Clerical and Administrative Employees) (State) Award will continue in force following this decision and as there was no stay granted of the decision of the Commissioner, it is appropriate that the variations to the award resulting from this decision operate on and from the first pay period on or after today. The appellant is directed to file and serve an agreed draft variation of the Real Estate Industry (Clerical and Administrative Employees) (State) Award to reflect this decision.

1. Leave to appeal is granted; 2. The appeal is upheld to the extent set out in these reasons; 3. The appellant is to file an agreed draft variation of the Real Estate Industry (Clerical and Administrative Employees) (State) Award, to reflect this decision, within 21days; 4. In the absence of agreement as to the variation to the said award, the parties are to each file and serve a draft variation reflecting their contentions within 21 days, together with short submissions in support thereof. Upon receipt of these documents, the Commission will make the necessary variations to the award. ___________________________

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