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[2001] NSWIRComm 310
Industrial Relations Commission (NSW)
2001-05-22
Grayson DP, Mr J
Original judgment source is linked above.
CITATION : State Rail Authority Firefighters' Award 2000 [2001] NSWIRComm 310 APPLICANT New South Wales Fire Brigade Employees Union
RESPONDENT PARTIES : State Rail Authority of New South Wales
INTERVENORS Australian Services Union, NSW Australian Rail, Tram and Bus Industry Union, NSW
FILE NUMBER: 5001 of 2000 CORAM: Grayson DP CATCHWORDS : Application for new award - Notice of Motion by respondent to substantive proceedings for interlocutory order staying indefinitely application for a new award - whether jurisidiction should be exercised at preliminary stage - whether duties and activites of employees have relevantly changed - whether employees classifed under federal instruments - whether substantive application for new award would if granted result in invalid and inoperative instrument - statutory interpretation - whether application contrary to public interest - award simplification process - invalidity by reason of inconsistency between the State and Federal instruments - intention to cover the field - stay ordered. Industrial Relations Act 1996 s 11 Industrial Relations Amendment Act 1992 Local Government Act 1919 Occupational Health and Safety Act 1983 LEGISLATION CITED : Industrial Relations Act 1988 (Cth) s 4 s 148 s 152 s 170 Division 3A Industrial Relations Reform Act 1993 (Cth) s 35 Workplace Relations Act 1996 (Cth) s 4 s 149 s 152 s 170 Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Schedule 11 Constitution s109 Blackley v Devondale Cream (Vic) Pty Ltd (1967) 117 CLR 253 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 Metal Trades Industries v Amalgamated Metal Workers Union (1983) 153 CLR 632 Re International Flight Simulator Instructors Award (1988) 26 IR 437 CASES CITED : Re Pastoral Industry (State) Award 104 IR 168 Telstra Corporation Limited v MacBean (2000) 98 IR 10 Telstra Corporation Limited v Worthing (1999) 197 CLR 61 Victoria v Commonwealth (1937) 58 CLR 618 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 HEARING DATES: 05/22/2001; 05/23/2001; 05/24/2001; 08/24/2001 DATE OF JUDGMENT: 12/03/2001
APPLICANT (Respondent on Notice of Motion) Mr J H Pearce of counsel NSW Fire Brigade Employees Union
RESPONDENT (Applicant on Notice of Motion) Mr R F Crow of counsel LEGAL REPRESENTATIVES: State Rail Authority of NSW
INTERVENORS Mr Ginters of counsel Australian Services Union, NSW Ms L Curruthers Australian Rail, Tram and Bus Union, NSW
JUDGMENT: - 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES GRAYSON DP Monday, 3 December 2001
Application by the New South Wales Fire Brigade Employees' Union for a State Rail Authority Firefighters Award pursuant to s 11 of the Industrial Relations Act 1996
1 The NSW Fire Brigade Employee's Union (FBEU) asks the Commission pursuant to s11 of the Industrial Relations Act 1996 (the Act) to make an award to be known as the State Rail Authority Firefighters Award.
2 The application is opposed by the State Rail Authority of New South Wales (SRA) who assert by Amended Notice of Motion filed in court on 8 May 2001 as follows: The employees who are to be covered by the proposed award are already covered by the federal Salaried Officers Award 1955 and the following federal certified agreements:
(a) The State Rail Authority of New South Wales Enterprise Agreement 1992 ("1992 Agreement");
(b) the State Rail Authority of New South Wales Enterprise Agreement 1994;
(c) the State Rail Authority of New South Wales Enterprise Agreement 1996; (d) the State Rail Authority of New South Wales Enterprise Agreement 1997; and (e) State Rail Authority of New South Wales Enterprise Agreement, 1999 Towards 2000. If the application is granted it will result in the making of an industrial instrument which is invalid and inoperative due to the operation of section 109 of the Constitution and sections 152 and 170LZ of the Workplace Relations Act 1996 (Cth). The application is contrary to the public interest as it requests this Commission to exercise its jurisdiction to make an industrial instrument that will be invalid.
3 The SRA seeks an order indefinitely staying the application and such further or other orders as the Commission thinks fit.
4 The Australian Rail, Tram and Bus Union (RTBU) and the Australian Services Union of New South Wales (ASU) as interested parties on the Notice of Motion, support the motion and rely upon the submissions of the SRA in that regard.
5 The parties agreed that the jurisdictional question should be determined in advance of the substantive application and the matter went over for hearing accordingly.
6 Evidence was taken on 22 May 2001 and 23 May 2001 and the Commission's decision was reserved following final submissions on 24 August 2001.
7 At hearing, Mr R Crow of counsel for the SRA called evidence from Luke Anthony Baratta, senior advisor, industrial relations with the SRA and from Mark Ellery, ASU industrial officer both of whom attended and were cross-examined on affidavits which were read onto the record and marked as Exhibits A, B and E in the proceedings.
8 Mr J H Pearce of counsel for the FBEU called evidence from Glen Peter Longfren Boyd, presently classified as a Senior Fire Equipment Officer within the State Rail Fire Service (SRS) formerly known as the Fire Protection Unit. Mr Boyd also attended and was cross-examined on his affidavit (Exhibit 1).
9 In order to put the issues between the parties into clearer perspective it is convenient to note that apart from the manager of the SRS, all other existing employees are classified as Senior Fire Equipment Officer and further, that much will turn on whether the nature of the work required of the present occupants of those positions is essentially the same as those which have historically been the subject of coverage by federal instruments of regulation.
10 The SRS and its predecessors, as the evidence reveals, can trace their origins back to 1895 when a unit known as the Railway Fire Brigade was established under NSW Fire Brigade charter. The objective of the unit was to attend to fires that occurred on railway property and to service and maintain fire prevention equipment. As time went on, improved fire technology and regulatory requirements shifted the emphasis of the unit from one of emergency response to one of a prevention service. (Exhibit A, annexure K)
11 The unit has enjoyed mixed fortunes over the years in terms of its organisational size and structure and the scope of its operations and there have been numerous reviews of its structure and functions beginning relevantly for the purpose of these proceedings, with the 1988 review. That review resulted in a significant expansion in staff numbers and a raised priority being given to fire protection throughout the SRA consistently with its obligations under the Occupational Health and Safety Act 1983 and Ordinance 70 of the Local Government Act 1919 (see Exhibit A, annexure A).
12 In consequence of the 1988 review, the federal Salaried Officers Award 1955, Department of Railways, New South Wales was varied to inter alia, insert the new classification of Senior Fire Equipment Officer (Exhibit A, annexure B).
13 In varying the award, the Australian Industrial Relations Commission (per Maher C) said this: The applications before the Commission seeks to have the effect of enabling the establishment of a new fire protection section within the State Rail Authority. The development of the new section has been carefully undertaken and has involved the Australian Transport Officers Federation and the Australian Railways Union. The concept underlying the application addresses the new requirement on the Authority to provide a fire protection facility rather than a fire fighting force. The aim of the Authority is to put into place a unit that is charged with providing expert assistance to the management and staff of the Authority, geared towards education, training and advice on fire safety and fire prevention. This small specialised unit is designed to be a link between those within the Authority and those professional bodies outside who are concerned with fire prevention. (Print H8131)
14 The duty statement for the position of Senior Fire Equipment Officer which was prepared in 1988 lists the following duties:
15 The evidence reveals that a further review of the unit was carried out in 1991 the essential effect of which was to decentralise or regionalise the fire protection function in line with then current management strategy and in so doing, to reallocate the positions hitherto residing in the integrated unit to the various SRA business units to which in turn, the fire protection function devolved.
16 The next review was carried out in 1996 and resulted in the re-establishment of a single fire protection unit with overarching responsibility for:
· Incident co-ordination - involving liaison with and assistance to the NSW Fire Brigade and Department of Bush Fires Services, investigation and replacement of equipment used during an incident;
· Consultancy - involving liaison with external agencies on a range of issues including, easy access programs, environmental issues and dangerous goods; · Equipment - supervision of the installation, testing maintenance of fixed and portable fire fighting equipment; · Training- involving fire training for all SRA staff; and · Inspections - involving the inspection of all SRA premises for compliance with fire safety standards and inspection of fixed and portable fire fighting equipment. (Exhibit A, annexure K)
17 In 1999, an independent organisation said to be experienced in the rail industry (GHD Transmark Pty Ltd) conducted a review into the economic viability, functions and risk exposure of the SRS in terms of State Rail's business and its obligations in relation to fire safety. The GHD Transmark Report (Exhibit A, annexure U) was submitted to a joint union/management steering committee which made the following observations in its report of 29 October 1999: The State Rail Fire Service has a 24-hour stand by team that is either housed at Redfern or stays in the confines of the office at Wilson Street. They have a Fire Appliance vehicle located at the same premises, which has equipment on board essentially for fire fighting purposes; these include hoses, standpipes, self contained breathing apparatus (SCBA) and the vehicle also has a water carrying capacity. The use of SCBA is for highly trained personnel such as the New South Wales Fire Brigades, who service, maintain and train with this equipment on a frequent basis. The use of SCBA by State Rail poses a potential safety risk to its staff if the equipment is not maintained or serviced and the training is not conducted regularly. It is unnecessary for State Rail Fire Service to have any "fire fighting" capabilities, this is unquestionably the role of the NSW Fire Brigades and any "fire fighting" capabilities that State Rail has, duplicates this mandatory service. The only reason the NSW Fire Brigade includes the State Rail Fire Service in its internal Standing Operations Procedures (SOP) is because State Rail has made this service available. If the service were not in existence then the New South Wales Fire Brigades would issue a different set of instructions to its staff, precluding the State Rail Fire Service from the SOP. The New South Wales Fire Brigade has confirmed that SRA Fire Service personnel are not required to attend incidents and not deemed essential to their operations. The New South Wales Fire Brigade can get direct assistance from relevant rail personnel (eg station staff) as to the layout of the Station and the whereabouts of Fire Panels if required. This is the same way that other businesses operate when the New South Wales Fire Brigade attends to an incident. (Exhibit A, annexure V)
18 In the result, the joint union/management steering committee concluded that the SRS should be abolished with effect from 29 November 1999 with the displaced occupants of its various positions being redeployed and/or otherwise managed in accordance with State Rail Policy.
19 Minds apparently differed within the FBEU, within the NSW Fire Brigade and within State Rail as to whether, in all the circumstances, complete abolition of SRS was the appropriate way to proceed and in June 2000, it was decided to establish a small unit comprising appropriately qualified Fire Officers who could be located in the central business district and the SRS premises at Redfern on a 24 hour basis thereby allowing State Rail and the NSW Fire Brigades: to work through the issues that have been raised by the NSW Fire Brigade Employees Union with a view to developing suitable protocols for the future and to clarify concerns. (Exhibit A, annexure Y)
20 The evidence reveals, as earlier observed, that the small unit established in June 2000 comprises a manager and other persons one of whom is Mr Boyd who gave evidence for the FBEU. The manager is classified as a senior officer, class 6 (SO6) under the federal Senior Officer Award 1977, Public Transport Commission of New South Wales (Exhibit E, annexure A) and the other persons including Mr Boyd (see Exhibit A, par 60) are classified as Senior Fire Equipment Officers arguably as the proponent of this motion (the SRA) would have it, under the federal Salaried Officers Award 1955 and successive certified federal agreements.
21 Turning then to the proposition for which the SRA contends namely, that the duties of persons presently employed in the SRS being essentially and relevantly unchanged, are covered by the various federal instruments, there is clear support for that proposition to be found in the federal legislation which has been usefully summarised by counsel in their respective submissions. Before dealing with that legislative support, however, it will be convenient to consider whether the principal purpose for which these various employees are presently employed and therefore in broad terms, the work they are presently employed to perform are matters contemplated within the various federal instruments said to bind them and in my opinion the evidence properly weighed compels an answer in the affirmative.
22 I say that without in any way rejecting the proposition for which the FBEU contends or at least that part of it which asserts that there have been changes to that work over time and in consequence of the various reviews which have taken place. Clearly and as Mr Boyd's evidence reveals, there have been certain changes in the work performed but not, as I am disposed in such magnitude or of such a nature as to materially alter the character of the callings or classifications in which they are and have been historically employed.
23 In other words, the primary function or principal purpose for which these employees are employed remains relevantly unchanged and although counsel for the FBEU strongly urges an alternative conclusion, a proper examination on the evidence of the duties and activities of these employees throughout the relevant period leads the Commission invariably to the ultimate conclusion for which the SRA contends. In that regard, I note Mr Boyd's cross-examination evidence to which the Commission was taken in some detail in Mr Crow's submissions and which demonstrated a substantial departure from and contradiction of his affidavit evidence to the effect that the current and former duties of the Senior Fire Equipment Officer are "not the same or even comparable" (Exhibit 1, par 9).
24 With every respect to him, it is a statement which simply did not stand up under detailed cross-examination and to the extent that he was asked to identify those duties and activities carried out by the Senior Fire Equipment Officer in 1989 by reference to contemporary daily shift reports (Exhibit 2) to which he was taken, his task was made that much more difficult, as Mr Crow is quick to point out, by his concession in cross-examination that because he was in a different classification at the time, he could not say with any degree of accuracy or precision what the Senior Fire Employment Officer did in 1989 (t/s 66.7, 79.9).
25 In fact, after some cross-examination Mr Boyd conceded that the 1989 duty statement covered the work of Senior Fire Equipment Officer in the period 1997-1999 during which he occupied the position (t/s 46.24) and further that there was a fair degree of overlap between the duties of the Senior Fire Equipment Officer in the period 1997-1999 and now (t/s 62.53 - 63.5).
26 Further and again as Mr Crow points out with some persuasive force, even if there has been significant change in the duties of the classification between 1988 when it was incorporated into the federal Salaried Officers Award and now, that is a matter relevant to considerations of work value and the appropriateness of the rate of remuneration rather than the applicability of the award.
27 I think on balance, that the evidence demonstrates that the work of the Senior Fire Equipment Officer is in substance if not in every detail, the same now as it was in 1989 as is the purpose and function of the unit in which they are employed. It is essentially the purpose and function of the SRS and those employed within it, as it was in 1989, to check the functioning of fire protection installations, to provide training in fire protection to SRA staff and to liaise with and assist the NSW Fire Brigade and other emergency services as required in emergency situations.
28 As to the remaining position within the SRS, namely the position of manger, the evidence reveals the various gradings which have applied to it beginning in 1988 when it was classified as senior officer, class 5 (Exhibit A, annexure A, attachment 2 and appendix 7); moving through to the 1996/97 restructure when it was classified as senior officer, class 3 (Exhibit A, annexure R) to the present time when it is classified as senior officer, class 6 (Exhibit A, par 60).
29 Each of these are, as the SRA submits, classifications to be found within the federal Senior Officers Award (Exhibit E, annexure A) which is expressed to be binding on, among others, the Public Transport Commission of New South Wales (the PTC). It is not disputed that the SRA is the successor to the business of the PTC and that the Senior Officers Award is therefore binding on the SRA (see s 149(1)(d) of the Workplace Relations Act 1996 (Cth)).
30 Further, the FBEU brought no evidence on which to found an argument that the present duties and activities of the manager's position are such as to distinguish it from the callings named in the federal award. The SRA submits therefore, that the Commission can safely conclude that the manager is still a senior officer and that the federal Senior Officers Award covers his employment.
31 The SRA relies in support of its motion to stay the FBEU award application, upon the provisions of the Workplace Relations Act 1996 (Cth) which are relevantly as follows: 152 (1) [Award to prevail] Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid. and 170LZ (1) [When certified agreement prevails] Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.
32 The SRA argues further that whilst the two federal awards remain in force and cover the employees of the SRS, it is nonetheless the case that since 1992 the salaries and conditions of employment for SRS employees have been regulated by successive certified agreements which remain in force and like the federal awards, would prevail, to the extent of any inconsistency, over any award made by this Commission. This Commission, as has been well settled, will not make an invalid or inoperative award (see Re International Flight Simulator Instructors Award (1988) 26 IR 437 for example).
33 The first and most comprehensive of those agreements is the State Rail Authority of New South Wales Enterprise Agreement 1992 which was by its terms intended to consolidate the classification structures and conditions of employment of eight federal awards and one federal agreement which then applied within the SRA (see Cl 8 of that agreement at Exhibit A, annexure LB2). The 1992 Agreement relevantly includes the classifications of Senior Fire Equipment Officer and Senior Officer at Part 1, Salaried Grades of Part II of the Agreement.
34 Notably, Parts II and IV of the 1992 Agreement carry award titles evincing an intention of the parties at the time to bring consolidated awards into existence which would, upon the making of the appropriate orders by the federal Commission, not only create those awards but also rescind and replace the numerous earlier awards referred to above and provide in futuro for salaries and wages in the case of Part II and for conditions of employment in the case of Part IV. However and by means that are helpfully set out in Mr Crow's submission, which are not disputed and which are not necessary to recite here, such orders were never made and the 1992 Agreement notwithstanding its award nomenclature continued in force as, in the same way did the federal awards. It is necessary to refer to that misadventure only to bring into consideration the relevant federal legislation that preserved agreements as distinct from awards.
35 As is clear from its face, the application for certification of the 1992 Agreement was made under s 134C of Division 3A of Part VI of the Industrial Relations Act 1988 (Cth) (the 1988 Act).
36 Division 3A of Part VI of the 1988 Act was brought into existence on 23 July 1992 by virtue of the Industrial Relations Amendment Act 1992 and was repealed by the Industrial Relations Reform Act 1993 (Cth) ("the Reform Act") which commenced on 30 March 1994. Thus Division 3A of Part VI of the 1988 Act operated throughout the period 23 July 1992 and 30 March 1994.
37 As Mr Crow submits, at all relevant times between 23 July 1992 and 30 March 1994, the 1988 Act defined a certified agreement as meaning:
an agreement certified under Division 3A of Part VI (s 4(1) of the 1988 Act)
38 At all relevant times between 23 July 1992 and 30 March 1994, the 1988 Act defined an award as meaning: an order that has been reduced to writing under subsection 143(1), and includes a certified agreement (s 4(1) of the 1988 Act)
39 Because the 1992 Agreement was a "certified agreement" for the purposes of the 1988 Act provisions then in force, it was also an "award" for the purposes of that Act.
40 At all relevant times between 23 July 1992 and 30 March 1994 the 1988 Act provided as follows: Awards prevail over State laws, awards etc. 152. Where a State law, or an order, award, decision or determination of a State industrial authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails over the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.
41 Thus it can be seen that the 1992 Agreement was an award for the purposes of s152 above and those provisions in conjunction with s109 of the Constitution would have rendered invalid any State award inconsistent with or dealing with matters dealt with in the 1992 Agreement.
42 A earlier observed, Division 3A of Part VI of the 1988 Act was repealed on 30 March 1994 by the 1993 Reform Act which relevantly provided as follows: Transitional: certified agreements 35. (1) In this section: "amended Act " means the Principal Act as amended by this Part; "commencement day" means the day on which Division 3A of Part VI of the Principal Act is repealed by this Part. (2) Despite the repeal of Division 3A of the Principal Act:
(b) an agreement certified under that Division and in force immediately before the commencement day has effect as if the Principal Act has not been amended by this Act, but may be extended under section 170MI of the amended Act; and
43 Again as Mr crow correctly submits, the reference in s 35(2)(b) of the Reform Act to "section 170MI of the amended Act" is to be taken as a reference to section 170MJ (see Telstra Corporation Limited v MacBean (2000) 98 IR 10 at pars 13, 24, 25 and 70).
44 Notably, s 170MJ of the 1988 Act, as amended by the Reform Act, provided for the parties to extend the period of operation of a certified agreement subject to the approval of the federal Commission whereas s 170MI, on the other hand, provided for a continuation in force of a certified agreement by force of law as distinct from the act of the parties.
45 As was observed in Telstra v McBean: I consider that the preferable construction of s 35(2) is that, except in relation to extensions of the period of their operation, it preserves the application to agreements coming into force before 30 March 1994 of the whole statutory regime embodied in the IR Act as in force immediately before 30 March 1994 as far as that regime was applicable to those certified agreements. Section 35(2)(b) is framed to take effect as a savings provision, preserving the effect of the Principal Act, notwithstanding amendments, including repeals which would otherwise, subject to s 8 of the Acts Interpretation Act 1901 (Cth), obliterate the repealed provisions; see for example Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, per Dixon J at 105. However, a savings provision, without more, does not add to or alter, the reach of the saved enactment. This view is supported by the Explanatory Memorandum accompanying the Bill which became the Reform Act. In relation to the clause which became s 35, that Memorandum said: The existing certified agreement provisions of the Act, Division 3A of Part VI, are to be repealed by this Bill. This clause makes transitional provisions in relation to agreements which were certified, or made with the intention of an application being made for certification, under those provisions…Paragraph 2(b) deals with agreements that were certified under Division 3A of Part VI prior to its repeal - such agreements will continue to operate as if Division 3A of Part VI had not been repealed, but will be able to be extended under the new s 170. (per Marshall J at par 13)
46 It follows then, as Mr Crow submits that the s 4(1) definitions of "award" and "certified agreements" in force immediately prior to 30 March 1994 form part of "the whole statutory regime" to which Marshall J alluded and so too does s 152 of the 1988 Act then in force. In the result, s 109 of the Constitution in conjunction with s 152 of the 1988 Act and the s 4(1) definitions of "award" and "certified agreement" operate to render invalid any State award inconsistent with or dealing with the same matters dealt with in the 1992 Agreement.
47 Mr Pearce's submissions to the effect that the 1992 Agreement is governed with different consequences by the provisions of s 170 MI and s 148 of the 1988 Act in force as from 30 March 1994 must therefore be rejected. It is the provisions of the 1988 Act which were in force immediately prior to that date and which were preserved by the operation of s 35(2)(b) of the Reform Act which apply to the 1992 Agreement. As such, the 1992 Agreement remains an "award" for all relevant purposes and continues in force immediately prior to and beyond 30 March 1994.
48 Both the 1994 Agreement (Exhibit B, annexure LB3) and the 1996 Agreement (Exhibit B, annexure LB4) were certified under s 170 MC of Division 2 of Part VIB of the 1988 Act which was introduced with effect from 30 March 1994 by the Reform Act. The 1994 Agreement provided for a 3 per cent increase in wages for all federal award employees (including SRS employees) and although it was expressed to apply for a nominal period of nine months it continued in force by virtue of the operation of s 170 MI and because it remained an award for all relevant purposes, by virtue also of the operation of s 148 of the 1988 Act.
49 The 1996 Agreement provided for wage adjustment of 3 per cent from the date of certification and 3 per cent from 12 June 1996 and like its predecessor remained in force and was an award for all relevant purposes. As such, the provisions of s 152 of the 1988 Act in conjunction with s 109 of the Constitution would have rendered invalid any State award made between 30 March 1994 and 31 December 1996 inconsistent with or dealing with matters dealt with in the 1994 or 1996 Agreements.
50 The enactment of the Workplace Relations and other Legislation Amendment Act 1996 (the WROLA) among other things, had the effect of changing the name of the 1988 Act to the Workplace Relations Act 1996 (the 1996 Act) effective 25 November 1996. The enactment of the WROLA also amended the provisions of s 152 of the 1988 Act the result of which was that s 152(1) of the 1996 Act relevantly provided from 31 December 1996 as follows: Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter within, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid. (see item 2 of Schedule 6 to WROLA)
51 The WROLA also repealed the definition of "award" which had hitherto been prescribed by s 4(1) of the 1988 Act and for a short time, the 1996 Act and replaced it with a definition which unlike its predecessor, made no reference to certified agreements (see item 1 of Schedule 11 to the WROLA).
52 Mr Crow argued that by reason of item 88 of Schedule 11 to the WROLA amendments thereby made in so far and they relate to certified agreements apply only in respect of agreements made on or after the commencement of the schedule on 31 December 1996.
53 In a practical sense, the argument goes, this means that the definition of "award" and "certified agreement" set out in subsection 4(1) of the 1996 Act as in force immediately prior to the amendments made by Schedule 8 on 1 January 1997 continue to apply in determining the operation and effect of the statutory provisions applying to the 1994 and 1996 Agreements. Of course, there may be some question as to whether the relevant statutory provision in this case is section 152 as in force immediately prior to 31 December 1996 (and arguably continued in effect in relation to agreements made before 31 December 1996), or subsection 152(1) as inserted by the WROLA on 31 December 1996. However, both provisions are in substantially the same terms. Whichever section applies the 1994 and 1996 Agreements remain "awards" for the purposes of that section.
54 It follows that, even after 31 December 1996, either section 152 (as in force prior to 31 December 1996 and continued in force in respect of agreements made prior to 31 December 1996), or subsection 152(1) (as inserted by the WROLA), in conjunction with section 109 of the Constitution, operate to render invalid any State award inconsistent with, or dealing with matters dealt with in the 1994 or 1996 Agreements.
55 On examination of the federal provisions to which Mr Crow refers it is clear that his submissions are correct and to the extent that they are at odds with Mr Pearce's submissions, they are accepted in preference thereto. Plainly when WROLA commenced on 31 December 1996, the new provisions of the 1996 Act did not apply to agreements already certified (see item 23(1), Part 2 of Schedule 8) such agreements having continued in force under the 1988 Act.
56 Moving on then, the State Rail Authority of New South Wales Enterprise Agreement 1997 (Exhibit B, annexure LB5) was certified by the federal Commission on 25 November 1997 and provided among other things, that it was to be read in conjunction with the 1992, 1994 and 1996 Agreements (clause 2.5). The 1997 Agreement, having been certified under the 1996 Act, continues in force beyond its nominal expiry date and until replaced by another certified agreement (s 170LX of the 1996 Act).
57 The State Rail Authority of New South Wales Enterprise Agreement 1999 (Exhibit B, annexure LB6) was certified by the federal Commission on 28 April 1999 (Raffaelli C, print R4140) and like its predecessors it contains a provision that it is to be read in conjunction with them (clause 2.5). It does not purport to replace any earlier certified agreement nor has it been replaced by another certified agreement. It thus continues in force and as with the other certified agreements and awards which remain in force, it prevails to the extent of any inconsistency, over terms and conditions which may be specified in the award for which the FBEU has applied (see s 152 and s 170LZ of the 1996 Act).
58 Mr Pearce's argument that the agreements and awards in question are not by and large, agreements and awards for the purposes of the 1996 Act and therefore, neither s 109 of the Constitution nor the provisions of the 1996 Act relied upon by the SRA can operate to deprive this Commission of jurisdiction in relation to industrial matters the subject of the FBEU award application is not, with every respect, an argument which can be accepted.
59 Having so concluded, I turn now to the question of potential inconsistency on the basis that where the federal awards and agreements that continue to bind the SRA deal with conditions of employment, there is no room for a State award to do so.
60 Clearly, many matters in the award proposed by the FBEU are already dealt with in the federal instruments which continue to bind the SRA some but not necessarily all of which were helpfully detailed by Mr Crow in his submission as follows: Clause 3 - Basic Wage:
The 1955 Award; cl 5 - Salaries The Senior Officers Award; cl 5 - Salary The 1992 EBA; Part II
Clause 6 - Intentions: The 1992 EBA; cl 5 and cl 6 and Attachment "B" The 1994 EBA; cl 5 - Aims and Objectives The 1996 EBA; cl 7 - Aim of Agreement, of Pt A The 1997 EBA; cl 1.1 - Aims and Objectives The 1999 EBA; cl 1.1 - Aims and Objectives Clause 6 - Rates of Pay and Allowances: Subclause 6.1 to 6.5 The 1955 Award; cl 5 - Salaries The Senior Officers Award; cl 5 - Salary The 1992 EBA; Part II The 1999 EBA; Section 5 - Schedule Subclause 6.6
The 1992 EBA; cl 11 - Method of Payment, of Part 2 - Uniform Conditions of Part IV
The 1999 EBA; Attachment 2 - Managing Excessive Absences
The 1997 EBA; cl 3.11 Union Training and cl. 3.1.12 - Paid Trade Union leave
The 1955 Award; cl 22 - Promotion and Seniority The Senior Officers Award; cl 10 -Promotion
The 1997 EBA; cl 3.1.17 - Payroll Deductions Clause 7 - Higher Duties The 1955 Award; cl 18 - Higher Grade Duties The Senior Officers Award; cl 9 - Acting Out of Ordinary Class The 1992 EBA; cl 15 - Higher Grade, of part 3 - Salaried/Professional, of part IV The 1999 EBA; cl 3.1.9 - Review of Direct Appointment Criteria Clause 8 - Hours of Work: The 1955 Award; cl 8 - Hours, and cl 9 - Rostered Day Off The Senior Officers Award; cl 7 - Hours of Duty The 1992 EBA; cl 3 - Accrued Day Off, and cl 4 - Ordinary Hours, of Pt 2 - Uniform Conditions, of Pt IV, and cl 2 - Ordinary Hours and cl 6 - Shift Work, of pt 3 - Salaried/Professional, of pt IV Clause 9 - Overtime: The 1955 Award: cl 10 - Overtime, cl 9 - Minimum Payments and cl 21 - Emergency Work The Senior Officers Award; cl 8 - Overtime The 1992 EBA; cl 3 - Interval Between Shifts, cl 7 - Working on Book Off Day, cl 8 - Minimum Payments, cl 10 Overtime, cl 11 - Call Outs, of Pt 3 - Salaried Officers Award, of Pt IV Clause 10 - Meals and Refreshments: The 1955 Award; cl 15(ii) - Meal Allowance When Working Overtime - All Officer The Senior Officers Award; cl 13 _ Expenses and Allowances The 1992 EBA; cl 4 - Meal Breaks, cl 11 - Call Outs and cl 14 - Travelling and Incidental Expenses, Pt 3 _ Salaried/Professional, of Pt IV Clause 12 - Progression and Promotions Provisions: The 1955 Award; cl 22 - Promotion and Seniority The Senior Officer Award; cl 6 - Increments and Classifications, cl 10 - Promotion and cl 14 - Classification Committee The 1992 EBA; Pt III - Classification Structures and Work level Descriptions The 1996 EBA; cl 4 - Review of Classification Structures and Adoption of Competency Based Structures, of Pt B The 19*97 EBA; cl 3.1.8 - Review of Merit Selection Process, and cl 3.1.9 - Review of Promotional Appeal Procedures The 1999 EBA; cl 3.1.9 - Review of Direct Appointment Criteria, and cl 3.1.14 - Training and Development
Clause 13 - Annual Leave The 1955 Award; cl 20 - Leave and Long Service Leave The Senior Officers Award; cl 14A - Annual Leave, Long Service leave and Public Holidays The 1992 EBA; cl 10 - Annual Leave, of Pt 2 - Uniform Conditions, of Pt IV The 1997 EBA cl 3.1.10 - Annual Leave Clause 14 - Compassionate Leave: The Senior Officers Award; cl 16 - Personal/Carer's Leave The 1997 EBA; cl 3.1.15 - Family/Personal Carer's Leave
Clause 16 - Long Service Leave The 1955 Award; cl 20 - Leave and Long Service Leave The Senior Officers Award; cl 14A - Annual Leave, Long Service Leave and Public Holidays The 1997 EBA; cl 3.1.14 - Long Service Leave Clause 17 - Parental Leave The 1997 EBA; cl 3.1.15 - Family/Personal Carer's Leave Clause 18 - Personal/Carer's Leave The Senior Officers Award; cl 16 - Personal/Carer's Leave The 1997 EBA; cl 3.1.15 - Family/Personal Carer's Leave Clause 19 - Sick Leave The Senior Officers Award; cl 16 - Personal Carer's Leave The 1997 EBA; cl 3.1.16 - Sick Leave Clause 20 - Special Leave for Union Activities: The 1997 EBA; cl 3.1.11 - Union Training and cl 3.1.12 - paid Trade Union Leave Clause 21 - Protective Clothing and Uniforms: The 1992 EBA; cl 7.9 - Safety Equipment and Protective Clothing, of Pt 2 - Uniform Conditions, of Pt IV Clause 24 - Disputes Avoidance Procedures: The 1992 EBA; cl 12 - Avoidance of Industrial Disputes The 1994 EBA; cl 10 - Avoidance of industrial Disputes The 1996 EBA; cl 4 - Disputes Settlement Procedure, of Pt A The 1997 EBA; cl 2.4 - Disputes Settlement Procedure The 1999 EBA; cl 2.4 - Disputes Settlement Procedure, and Attachment 3 Clause 25 - Salary Sacrifice to Superannuation: The 1999 EBA; cl 1.17 - Salary Packaging of Superannuation Clause 27 - General Conditions of Employment: The 1955 Award generally The Senior Officers Award generally The 1992 EBA, Pt IV generally
61 In some cases, the federal provision identified above as dealing with a matter in the proposed award, does not provide the relevant benefit or obligation. For example, cl 16 of the Senior Officers Award is identified as dealing with sick leave, compassionate leave and personal carer's leave, even though cl 16 is limited by its terms to employees of the State Transit Authority of New South Wales.
62 Provisions such as this nevertheless evince an intention on the part of the award maker to cover the field in relation to such a matter. They evidence a deliberate decision to exclude the matter from award regulation in respect of employees of the SRA. A State award that provided for that matter would impair the operation of the federal award, and would be invalid.
63 In Victoria v Commonwealth (1937) 58 CLR 618 per Dixon J at 630, the High Court described the position thus: Such a statement must, of course, begin with some formulation of what I understand to be the test of inconsistency under sec 109 adopted in this court. I attempted in Ex parte McLean to explain my conception of the principle upon which the decisions had proceeded, particularly those given upon the Commonwealth Conciliation and Arbitration Act , and there will be found all that is required for the purpose now in hand. Substantially, it amounts to this. When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the commonwealth law and so as inconsistent. Cf., too, Stock Motor Ploughs Ltf v Forsyth .
64 An analysis of the FBEU application in the light of what is set out above reveals that only remaining incidental matters examples of which appear below would not be inconsistent with a federal award or agreement. Those matters, which Mr Crow submits are not fundamental or essential award conditions, include: cl 6.12 - payments under the award after death cl 6.14 - recovery of overpayments cl 11 - provision of transport home after working late on overtime cl 15 - examination and assessment leave cl 22 - provision of clothing drying facility cl 23 - cleaning of clothing and uniforms cl 26 - reference to anti-discrimination laws
65 It is, as Mr Crow submits, by no means certain that the Commission would make an award limited to such incidental matters in the knowledge that the whole range of more fundamental or essential matters are prescribed by federal instruments.
66 Mr Pearce argues, in any event, that all of the federal instruments relied upon but by the SRA for the purpose of this motion, provide minimum entitlements only and do not prevent the payment of enhanced benefits pursuant to any order of this Commission. The scope and operation of federal instruments should be construed narrowly against the background that awards and certified agreements deal with a dispute between parties whose relations apart from the award are ordinarily governed by State law and the existence of State law is for the most part assumed which assumption will be relevant in discerning any inconsistency under 109 of the Constitution, s 152 and s 170LZ of the Workplace Relations Act 1996 (see Metal Trades Industries v Amalgamated Metal Workers Union (1983) 153 CLR 632 at 642-644).
67 As to that, Mr Crow submits that the fact that the 1992 agreement for example may or may not provide minimum terms and conditions does not mean that a State award providing more generous terms and conditions would not be inconsistent with it. The situation was dealt with by the High Court in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466. There, the High Court held invalid a State law setting a 44 hour week to the extent that it impinged upon the operation of a federal award requiring a 48 hour week. As noted by Starke J (at 525): An award that a person shall pay a certain minimum rate of wage involves, in its negative aspect, that he need pay no more. It is not consistent with such a direction to say that [the employer] shall pay a lower or a higher rate of wage.
68 The fact that SRA may be at liberty to freely choose to provide benefits in excess of the minimum set by the 1992, 1994 or 1996 Agreements is neither here nor there. As was noted by Knox CJ and Gavan Duffy J (at 478), Two statutes may be inconsistent, although obedience to each of them may be possible without disobeying the other. Statutes may do more than impose duties: they may for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it.
69 Direct inconsistency will arise in such a case. This is because any State award dealing with the same subject matter will directly derogate from the enjoyment of rights provided by the 1992, 1994 and 1996 Agreements.
70 The point is illustrated by Blackley v Devondale Cream (Vic) Pty Ltd (1967) 117 CLR 253. There, the High Court was considering a State law which imposed a higher minimum wage than that provided under a federal award. Delivering the leading judgement, Barwick CJ, with whom McTiernan J agreed stated at 258: Properly understood the [federal] Act and the [federal] award, in placing that obligation upon the employer, enacts, in my opinion, that the sum so to be paid is the only sum which by law the employer is obliged to pay. The description "minimum wage" must not, in my opinion, be allowed to obscure the fact that in truth the prescribed wage is the largest wage which the employer is required by the Act and the award to pay. …But no room is left, in my opinion, for a statute of the State to require the payment of a larger sum by way of wages than the amount prescribed by the award. To give the employee the right to be paid the larger wage is, in my opinion, to come into direct collision with the provisions of the award. …In my opinion, there is no need in this case to seek to define the intended field of the federal legislation in order to resolve the question of inconsistency. The case, to my mind, is one of direct collision in which the State law, if allowed to operate, would impose an obligation greater than that which the federal law has provided should be the amount which the employer should be bound by law to pay.
71 This passage has been cited with approval in a number of subsequent High Court decisions, most recently in the Full Bench of the Court in Telstra Corporation Limited v Worthing (1999) 197 CLR 61 and in my opinion, it defeats the counterargument mounted by Mr Pearce.
72 As to Mr Pearce's submission that that granting the relief sought here by the SRA would be premature and in advance of any conclusion by the Commission as to for example the merit of the FBEU application or the potential for a conciliated outcome, it seems to me for the reasons thus far set out, that the material facts necessitate the granting of such relief in the interests of resolving the present differences between the industrial parties. To do otherwise would be to ignore the unassailable fact that the award sought by the FBEU is demonstrably incapable of being validly made.
73 The final matter to be dealt with was raised by the Commission with the parties in the course of argument and relates to the relevance to these proceedings, if any, of the decision of the Full Bench in Re Pastoral Industry (State) Award 104 IR 168. In that case, the Commission was concerned with whether the State award in question should be varied under the counterpart award principles to reflect the relevant federal award which had undergone the so-called simplification process under the Workplace Relations Act 1996.
74 The Commission was informed that the Salaried Officers Award 1955 and the Senior Officers Award are the subject of current simplification proceedings in the Australian Industrial Relations Commission under item 51 of Schedule 5 to the WROLA (C Nos 879 of 1998 and 880 of 1998 respectively) and further, that it is possible that parts of those awards have ceased to have effect by reason of item 50 of Schedule 5 to the WROLA. In such circumstances, it is inappropriate to speculate on the outcome of those proceedings because among other things, most of the provisions with which a State award would, if made, be inconsistent are to be found in the various federal agreements which are unaffected by the simplification provisions of the federal Act.
75 I am of the view that the award proceedings brought by the FBEU ought be stayed indefinitely and I grant the order sought by the SRA accordingly.
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.
(1967) 117 CLR 253
(1926) 37 CLR 466
(1983) 153 CLR 632
(1988) 26 IR 437
(2000) 98 IR 10
(1999) 197 CLR 61
(1937) 58 CLR 618
(1931) 46 CLR 73