Rock and Ore Milling and Refining (State) Award; Rock and Ore Milling and Refining Redundancy (State) Award; Rock and Ore Milling Superannuation (State) Award [2001] NSWIRComm 54

Mr P Ryan LEGAL REPRESENTATIVES: Employers First

Mr A Reid Australian Business Industrial

JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

ROCK AND ORE MILLING AND REFINING REDUNDANCY (STATE) AWARD

Notices of Award Review pursuant to section 19 of the Industrial Relations Act 1996

1 These proceedings arise from notices of review generated on 2 November 1999 by the Industrial Registrar, pursuant to s19 of the Industrial Relations Act, 1996 ("the Act"). The matters were originally listed before Bishop C and subsequently re-allocated to me as a member of the s19 Award Review Panel, established by his Honour the President, in February 2001. 2 At a mention of the matters on 7 March 2001 Mr R Tripodi, appearing the for the Australian Workers' Union, New South Wales ("the AWU"), advised that the parties had agreed on changes to the parent Award, such as to give effect to s19 of the Act and the Commission's Principles for Review of Awards (1998) 85 IR 38.

However, he advised that the employers were of the view that certain of the changes in respect to superannuation and the training wage provisions, could only be effected by way of a s17 application to the Award. The parties agreed that such application would be made.

Mr P Ryan, from Employer's First, and Mr A Reid , from Australian Business Industrial ("ABI"), supported the AWU's submission. 3 During the proceedings, the Commission expressed the view that it was unnecessary to file a s17 application to give effect to Award changes that might be required pursuant to s19 of the Act. See Warehouse Employees - Drug (State) Award (unreported) Kavanagh J, Matter IRC851 of 1999, 21 February 2001. 4 Mr Tripodi then indicated that a review document would be filed with the Commission and a hearing of the matter could be adjourned for two weeks. 5 Prior to the hearing, the parties filed written submissions. The AWU submitted that an agreement had been reached in respect to all matters; save for the means by which State Wage Case adjustments to the training wage rates were to be incorporated into the Award. The Union put the issue two ways: (1) Whether the rates for "lagging" awards can be adjusted in a s19 review.

(2) The manner of adjusting the rates in "lagging" awards in a s19 review.

Mr Reid submitted that the variation of the training wage rates to reflect past State Wage Case decisions cannot be effected through the s19 Award Review process and must be made by way of an application pursuant to s17 of the Act.

I shall deal with these submissions shortly. 6 At the hearing on 23 March 2000, both parties tendered identical exhibits (Ex'1' and Ex'A') save for Clause 25 - Training Wage and Part C Monetary Rates - Traineeships. The AWU exhibit reflected all State Wage Case increases which had hitherto not been incorporated, i.e. those available under the 1998, 1999 and 2000 State Wage Case decisions. By contrast, ABI's exhibit (Ex'A') retained the existing 1997 training wage rates.

After considering the submissions of the parties, and having reviewed the draft documents, and except for the training wage provision, the Commission is satisfied that the requirements of s19 and the Commission's Principles for Review of Awards have been satisfied in both of the draft Awards. 7 The Commission accordingly makes the changes proposed to take effect on and from 23 March 2001. 8 Consequently, the Commission intends to rescind the two splinter awards: Rock and Ore Milling and Refining Redundancy (State) Award (Matter IRC 6045 of 1999) and

Rock and Ore Milling Superannuation (State) Award (Matter No IRC 1244 of 2001)

Orders of rescission, pursuant to s19 and Principle 22 of the Principles are attached to this decision. 9 The Commission also intends to vary cl 29, Area Incidence and Duration, such as to preserve the Award's nominal term, even though it has expired. The change will be expressed as follows: This award shall take effect from the first pay period to commence on or after 28 August 1997 and shall remain in force thereafter for a period of twelve months. It shall apply to employees of the classes specified in this award, excepting employees of Omya Southern Pty Ltd within the jurisdiction of the Rock and Ore Milling and Refining (State) Industrial Committee within the State of New South Wales, excluding the County of Yancowinna. The changes made to this award pursuant to section 19 of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 18 December 1998 (308 IG 307) take effect on 23 March 2001. 10 Two minor amendments to the drafts were discussed and agreed during the proceedings. These changes will be included. The first is to delete the word "consolidated" from the Award's title and include a new heading above the Arrangement clause, entitled "Reviewed Award". 11 During the proceedings, the Commission raised with the parties the addition to the various grounds of discrimination in the Anti Discrimination Clause, cl 28, a further ground - Carer's Responsibilities. 12 This change would seem particularly appropriate having regard to recent amendments to the Anti Discrimination Act, 1977, which now include carer's responsibilities as a prohibited ground of discrimination. Such an addition was inserted with the Commission's approval and by consent in the s19 Review of the Aged Care Industry (Broken Hill) Award, Sams DP, Matter IRC223 of 2001, 2 March 2001. The employers requested an opportunity to consider this issue and I directed the parties advise of their views when settling the minutes of the revised Award.

On one view of it, little turns on the competing submissions of the parties. The issue in dispute is more about form, than substance. This is so because the parties have agreed to "phase in" the training wage adjustments to reflect past State Wage Case increases. Put simply, their dispute is about how to do it. 14 Mr Tripodi tendered Ex'2' which he said reflects an agreed "phasing in" timetable. The issue remained as to whether State Wage Case increases in a "lagging" award can be effected by the s19 review process, or, as claimed by the employers, can only be effected by application pursuant to s17 of the Act. 15 The dichotomy between the s19 review process and the ordinary award making process was the subject of detailed consideration by the Full Bench in its Principles for Review of Awards decision, see p44. Subsequent decisions by individual members of the Commission have also dealt with the matter; albeit in different contexts. See Metal, Engineering and Associated Industries (State) Award (unreported) Walton VP, Matters IRC 434 and 1147 of 2000 and IRC 1138, 6125, 5908 and 5787 of 1999; Poultry Industry Livestock (State) Award (unreported) McKenna C, Matter IRC109 of 1999, 19 January 2001; Mechanical Opticians (State) Award (unreported) McLeay C, Matter IRC4196 of 1999, 24 October 2000 and Tennis Strings and Sutures Industry (State) Award (unreported) Walton VP, Matters IRC6129 and 1281 of 1999, Ex Tempore Decision, 15 March 2001.

From a reading of these decisions it strikes me that the matter is now well settled. 16 Mr Tripodi, appropriately, referred me to a passage from the Full Bench's decision dealing with this dichotomy: 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 s10, 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 s19 has a stated and limited purpose - namely "to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards". In s19(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.

17 In my view, there is absolutely no confusion here as to the two processes. 18 Further, the Full Bench made it pellucidly clear when it said at p46: In the result, we accept that in a s19 review matters such as whether the award rates have been adjusted to give effect to earlier State Wage Case decisions, should be considered, ...

19 Mr Reid relied on a decision of McLeay C in Mechanical Opticians (State) Award where the Commissioner said at p13: This remark clarifies, is( sic ) there was any doubt, the limitation on the scope of award reviews and the constraint on the power of the Commission to consider submissions which go beyond that stated and limited purpose. The union's application in toto , as well as the employers' preferred position and their alternative positions require due consideration, in a way which is outside the scope of a s19 review. If any of the parties seeks to have the award varied then an application under s17 should be made and progressed in the usual way. Such an application would allow for proper consideration of all of the issues raised in these proceedings, many of which I have not considered in this context because of the constraints on my power to do so under a s19 application.

In my opinion, the Commissioner's findings are no more than a reflection of the clear views expressed by the Full Bench. The quoted passage is utterly consistent with the conclusions of other members of the Commission earlier cited.

Mr Reid' s submissions are, with respect, not helped by the Commissioner's decision.

The circumstances before the Commissioner are plainly distinguished from those which are before me. In the Mechanical Opticians (State) Award decision, the Commissioner was being asked to declare obsolete a provision in the Contract of Employment clause which was contended for by the Union as being contrary to the Workplace Relations Act (1996) (Cth). The issue was strongly contested. The Commissioner found that the provision was not obsolete and could not be removed by virtue of a s19 award review. Further, the Commissioner held that the change sought by the Union was a " substantial variation to the award provision in regard to notice of termination of employment ". As such, it could only be processed by way of a substantive application pursuant to s17 of the Act. 20 These circumstances are in no way analogous to those before me. The relevant subject matter - correcting a "lagging" award - is not in dispute. Likewise, the process of "phasing in" the wage adjustments is agreed. More importantly, however, I do not accept that the changes sought are a "substantial variation to the award provision" of the same character identified by McLeay C. 21 Further, it seems to me there can be no doubt that the Commission in exercising its function to review awards under s19 of the Act, is required to take account of previous State Wage Case decisions. Logically, this must mean that where wage adjustments available under such decisions have not been included, that the Commission would, in the absence of very good reasons to the contrary, be obliged to include them in the Review.

So much so is plainly evident by s19(3)(a): The Commission must take account of the following matters in the review of awards: a) any decision of the Commission under Part 3 or any other test case decision of the Commission.

22 A "test case" is defined in Principle 13: A "test case" decision referred to in s19(3) and (4) means a decision made under Pt 3 - National and State decisions of Ch 2 of the 1996 Act or any other decision which the Commission determines to be a test case having general application to awards in the State.

23 Principle 14 gives examples of "Test Case" decisions which were applicable at the time of the making of the Principles; namely 18 December 1998: The test case standards presently applying which must be taken into account by the Commission in a review are: (a) Re Application for Redundancy Awards (1994) 53 IR 419

(b) State Personal Carer's/Leave Case August 1996 (1996) 68 IR 308

(c) State Personal Carer's/Leave Case 1998 (1998) 84 IR 416

(d) State Wage Case August 1997 (NSW) (1997) 73 IR 200 and earlier State Wage Case decisions therein referred to.

24 Relying on (d) above, Mr Ryan submitted that the only State Wage Case decisions which can be taken into account are limited to State Wage Case decisions up to, and including, the 1997 decision. This submission has no basis and misunderstands the construction of the wording of the Principle. The Full Bench never intended that this list was exhaustive. It merely recognised that the test case standards then applying were those so identified. Future test case standards must similarly be taken into account.

The Commission is fortified in this finding by reference to s19(3)(a) which makes plain that the Commission is to consider " any " decision of the Commission under Pt 3 of the Act.

25 Despite my inquiry, the parties could proffer no reason as to why the training wage rates were not applied for in 1998, 1999 and 2000.

Nevertheless, I have no doubt that what is required when modernising or updating an Award, is that previous State Wage Case decisions be incorporated where, for whatever reason, they have been overlooked.

Indeed, all parties described the Award as "lagging" in respect to the failure to include State Wage Case adjustments to the training wage provisions. 26 Even leaving aside the express wording of Principle 14, it would be hard to imagine a more appropriate and definitive means of modernising an Award than to incorporate previous State Wage Case adjustments which have flowed as safety net adjustments throughout the State Award system. Moreover, not to do so, would, I think, run counter to the general provisions in s10 of the Act for the Commission to make awards "setting fair and reasonable conditions of employment for employees".

At this juncture, it is appropriate to reaffirm the dictum enunciated by Kavanagh J in Warehouse Employees - Drug (State) Award . Her Honour found it unnecessary for the parties to file a s17 application to give effect to changes to an Award which the Commission believes are necessary, having regard to the statutory mandate in s19(6) of the Act.

While her Honour was there exercising the Commission's discretionary powers in making a change which the Commission "considered necessary", it seems to me even less likely that there would be a requirement for a s17 application where the change is so expressly demanded by the statute itself. 27 In the result, I have no hesitation in accepting the AWU's submissions. The Commission finds, as a matter of law, that in modernising an Award, the Commission is obliged to incorporate previous State Wage Case decisions and that the required changes can, and should, be given effect pursuant to s19(6) of the Act. Put succinctly, a s17 application is unnecessary. 28 A consequential consideration arises from this finding. The Preamble to the Principles includes the following sentence: Any changes to an award as a result of such a review will be made consistently with the State Wage Case principles and the 1996 Act.

29 Thus, it seems unarguable, in making the changes necessary to incorporate State Wage Case decisions, that the Commission must be mindful to ensure consistency with all the State Wage Case Principles.

This might appear to be self evident, having regard for the fact that the change is, in itself, a component of the State Wage Case Principles. Axiomatically, it must be consistent. However, in the circumstances here disclosed, it has implications for the "phasing in" of State Wage Case adjustments as required by Principle 8(g) and (h) which are expressed as: (g) Increases arising from the State Wage Case 2000 and from previous State Wage cases may be phased in upon application and where circumstances justify it. (h) In the absence of consent in respect of phasing in, an application will be determined by the Commission.

30 The parties have agreed to a "phasing in" of the adjustments. Viewed in this context, such "phasing in", as a change required by s19, is completely consistent with the State Wage Case Principles.

It should be approved. 31 The Commission directs the parties to file a revised document giving effect to my conclusions in this decision. Such document is to be filed within seven (7) days with liberty to apply in respect to any matters remaining in dispute.

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.