[1] Mr Shane Layton (the applicant) was employed by North Goonyella Coal Mines Pty Ltd (the respondent) until his employment was terminated on 19 February 2007. The applicant contends that the termination of his employment was harsh unjust or unreasonable. The applicant has lodged an application pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act). The application was lodged on 23 March 2007, some eleven days beyond the limit prescribed by s.643(14) of the Act. The applicant asks the Commission to allow him to lodge his application by exercising the discretion the Commission has at s.643(14) to accept lodgements beyond the 21 day limit.

[2] The respondent opposes the Commission extending time and in addition moves for the Commission to dismiss the application for want of jurisdiction. The basis of the respondent's motion to dismiss is that the applicant is excluded from making the application by s.638(1)(f). That subsection is as follows:

"638(1) Exclusions from Subdivisions B, D and E and sections 660 and 661

The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:

(i) who is not employed under award-derived conditions (see subsection 642(6)); and

(ii) to whom subsection (6) or (7) applies." (emphasis added)

[3] Subsection 642(6) is as follows:

"For the purposes of this Division, an employee is taken to be employed under award-derived conditions if the employer is bound:

(a) in relation to the employee's wages and conditions of employment - by an award or a workplace agreement; or

(ii) in relation to the employee's conditions of employment - by an award or a workplace agreement."

[4] The effect of all of this is that if the applicant was not employed under award derived conditions and the applicant's remuneration exceeded the rate specified in the Regulations then the applicant is excluded from lodging an application pursuant to s.643(1)(a). There is no contest that the applicant's remuneration exceeded the specified rate. The applicant contends that he was employed under "award derived conditions". It is submitted that the applicant was employed under the terms of the Clerical Employees Award - State 2002 (the Clerks Award). The applicant was employed as a "Commercial Superintendent" at a coal mine located in the State of Queensland.

[5] Much of the proceedings in this matter went to whether or not the applicant was covered by the Clerks Award. In my view there is a question to be answered before the one debated by the parties. The Clerks Award is an award made by the Queensland Industrial Relations Commission and is a common rule award that operates within the State of Queensland. By virtue of the March 2006 amendments (see the Workplace Relations Amendment (Work Choices) Act 2005) the Clerks Award for the purposes of the Workplace Relations Act 1996 has become a Notional Agreement Preserving State Awards (NAPSA) (see Schedule 8 Part 3 of the Act). Thus the starting point in this matter must be whether a NAPSA is an "award" or "workplace agreement" for the purposes of s.642(6) of the Act. If a NAPSA is not an "award" or a "workplace agreement" then the applicant was not employed under award derived conditions (even if he was covered by the Clerks Award).

[6] Section 4 of the Act defines "award" as meaning:

"(a) an award made by the Commission under section 539; or

[7] A NAPSA is not an award made by the Commission under s.539. At s.4 of the Act a "pre-reform award" means an instrument that has effect after the reform commencement under item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005 (WRA). Schedule 4 of the WRA provides the transitional (and other) arrangements necessary as a result of the coming into effect of the WRA. Item 4 of Schedule 4 at subitem (1) provides that for the purposes of item 4 "award" means an award within the meaning of subsection 4(1) of the Workplace Relations Act 1996 as in force immediately before the reform commencement.

[8] Subitems 4(2) and 4(3) of Item 4 of Schedule 4 of the WRA outline the transition of an "award" (as defined in subitem (1)) into a "pre-reform award". The subitems are (relevantly) in these terms:

"(2) This item applies to an award (the original awards) in force immediately before the reform commencement.

(3) The original award is taken to be replaced by an instrument (the pre-reform award) in the same terms as the original award that, on and from the reform commencement …"

[9] As the Clerks Award was not an "award" within the meaning of the pre-reform Act it is not an "award" for the purposes of item 4 of Schedule 4 of the WRA. It follows that the Clerks Award did not become an "original award" and therefore has never transmitted into a "pre-reform award". It is therefore concluded that the Clerks Award (as a NAPSA) is not an award as defined in s.4(1) of the current Act and therefore is not an award for the purposes of s.642(6).

[10] Following the same approach it is necessary to consider whether or not a NAPSA is a "workplace agreement" for the purposes of s.642(6). Section 4 defines a "workplace agreement" as meaning:

[11] An Australian Workplace Agreement (AWA) has the meaning given by s.326 of the Act. Without going to the detail it is apparent that a NAPSA is not an AWA. At s.4(1) of the Act a "collective agreement" means:

[12] Each of the above types of agreement has the meaning given by ss.327, 328, 330, 329 and 331 respectively (see s.4). Again, without going to the detail of each of those meanings, it is apparent that a NAPSA does not fall into the meaning of any of the types of agreement described in (a) to (e) above. Accordingly it must be concluded that a NAPSA and in this case specifically the Clerks Award is not a "workplace agreement" for the purposes of s.642(6) of the Act.

[13] As the Clerks Award is not an "award" or a "workplace agreement" for the purposes of s.642(6) it must follow that even if the applicant is covered by that award (NAPSA) he is still excluded from the jurisdiction by s.638(f) because he is not employed under "award derived conditions" and his rate of remuneration exceeds the rate specified in the Regulations.

[14] For the foregoing reasons the Commission lacks the jurisdiction to determine this application and accordingly the application is hereby dismissed. An order giving effect to this decision is found at PR977111.

Printed by authority of the Commonwealth Government Printer