State Working Hours Case 2003, Re [2003] NSWIRComm 86

PARTIES: Ms N Carl - Labour Council of New South Wales Mr J V Murphy of counsel - Minister for Industrial Relations and the Public Employment Office Mr T McDonald - Employers First and Australian Retailers Association, New South Wales Division LEGAL REPRESENTATIVES: Mr D Grozier - Australian Business Industrial Mr M Baldwin - Australian Industry Group Mr E Tahar - Housing Industry (Industrial Relations) Association Ms P F Lowson of counsel - President of the Anti-Discrimination Board

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Walton J, Vice-President Boland J Staunton J Tabbaa C Thursday 10 April 2003

Matter No IRC 4314 of 2002 Re STATE WORKING HOURS CASE 2003 Summons to Show Cause - Commission on its own initiative pursuant to Part 3 of Chapter 2 of the Industrial Relations Act 1996.

STATEMENT OF THE FULL BENCH [2003] NSWIRComm 86

1 On 26 July 2002, the Commission issued a Summons to industrial parties to appear before it to show cause why, after considering the decision of the Australian Industrial Relations Commission (AIRC) in the Working Hours Case July 2002 given on Tuesday 23 July 2002 (PR072002; now reported at (2002) 114 IR 390), the Full Bench should not take such action pursuant to Part 3 of Chapter 2 of the Industrial Relations Act 1996 as it may deem proper.

2 The proceedings commenced before the Commission on 2 August 2002. In addition to appearances from the Minister and the usual industrial parties in such matters, the President of the Anti-Discrimination Board (ADB) sought leave to intervene pursuant to s 167(2) of the Industrial Relations Act. Leave to intervene was subsequently granted by the Full Bench on 16 December 2002: Re State Working Hours Case 2002 - Statement of the Full Bench [2002] NSWIRComm 350.

3 In the Working Hours Case July 2002, the AIRC determined a claim by the Australian Council of Trade Unions (ACTU) about working hours and also the claim by the Australian Chamber of Commerce and Industry (ACCI) about annualised wage rates and other matters.

4 Given the decision of the AIRC as to the claims made by the ACCI, it is only necessary for the Commission to consider the AIRC decision in relation to the ACTU's claim concerning working hours within the context of Part 3 of Chapter 2 of the Act.

5 The claim made by the ACTU to the AIRC was that it should award, as a test case standard, three sub-clauses titled: (1) Reasonable Hours of Work (2) Reasonable Overtime (3) Paid Breaks after Extreme Working Hours.

6 In the AIRC decision of July 2002, it determined that it was appropriate to award a test-case standard that would: ... confer a right on an employee to refuse to work overtime in circumstances where the working of such overtime would result in the employee working unreasonable hours. It will permit the employees' ordinary hours to be taken into account in deciding whether overtime is unreasonable, but the right of refusal it confers will operate only in relation to overtime. The provision is only intended to be included in awards that specify ordinary time and provide for overtime. It will include a reference to the well established right of an employer to require an employee to work reasonable overtime. 7 To reflect that decision, the AIRC awarded the following provision: 1.1 Subject to clause 1.2 an employer may require an employee to work reasonable overtime at overtime rates. 1.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to: 1.2.1 any risk to employee health and safety; 1.2.2 the employee's personal circumstances including any family responsibilities; 1.2.3 the needs of the workplace or enterprise; 1.2.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and 1.2.5 any other relevant matter.

8 Following the initial directions in this matter on 2 August 2002, discussions and negotiations took place between the industrial parties and the intervener before final submissions were heard by the Full Bench. At that time, with the exception of the intervener, all of the industrial parties were in agreement as to the clause to be adopted to implement the decision of the AIRC. The agreement involved a minor modification to the clause as approved by the AIRC, primarily for purposes of clarity. The modified clause as agreed was as follows: 1.1 Subject to clause 1.2, an employer may require an employee to work reasonable overtime at overtime rates. 1.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable. 1.3 For the purposes of clause 1.2 what is unreasonable or otherwise will be determined having regard to: 1.3.1 any risk to employee health and safety; 1.3.2 the employee's personal circumstances including any family responsibilities; 1.3.3 the needs of the workplace or enterprise; 1.3.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and 1.3.5 any other relevant matter.

9 As part of these proceedings a survey had been conducted by the Department of Industrial Relations that had revealed a degree of variance of overtime provisions in New South Wales awards. As a result it was agreed between the industrial parties that variation to awards in the terms of the agreed clause should be by way of individual application for insertion into awards that specify ordinary time and provide for overtime.

10 There was one matter about which there was no agreement between the industrial parties and the President of the ADB as the intervener.

11 Following leave to intervene being granted, the ADB submitted that the agreed clause should be further modified by the addition of the words "and carer" to clause 1.3.2.

12 In the alternative, the ADB submitted, if the Commission were to determine not to include reference to "carer responsibilities" in any reasonable hours clause, then the Commission should make it clear in its decision that the word "family" is to be construed broadly and specifically includes those relationships covered by the carer responsibility provisions of the Anti-Discrimination Act 1977.

13 All of the employer parties opposed the insertion of the additional words in clause 1.3.2. The Labor Council of New South Wales, the Minister for Industrial Relations and the Public Employment Office supported the alternative approach proposed by the ADB.

14 Previous decisions of the Commission have inserted anti-discrimination provisions into State awards and enterprise agreements by way of general order to take account of the Commission's primary statutory obligation in relation to anti-discrimination. The anti-discrimination provisions have also been amended to incorporate "responsibilities as a carer" in the general provisions consistent with the Commission's approach in employment-related anti-discrimination matters.

15 The word "carer" is also a word that has a common understanding in the community. As generally understood, the expression refers to a person who, in a voluntary or professional capacity, has the care of another person. Sometimes the role may be within the bounds of family or personal circumstances, sometimes it will be otherwise.

16 One of the employers' objections to inserting the words "and carer" in clause 1.3.2 is based, in part, on the different meanings that, taking all of the above into account, does and could apply to those words. With that we agree; and for that reason we adopt the course we do. It was also argued that there should be strict adherence to federal decisions. On that issue we are not persuaded that reference by the AIRC to the words "family responsibilities" could not properly be seen to have been used in the familiar sense having regard to the provisions of the Sex Discrimination Act 1984 (Cth). We also accept the submission of the employer parties that, within the broad construction of "family responsibilities" as a sub-set of personal circumstances, coupled with the addition of "any other relevant matter" in clause 1.3.5, the broad nature of responsibilities as a carer could be said to be encompassed.

17 Nevertheless, on balance, we see some merit in inserting the words sought by the President of the ADB to broadly give conformity with the anti-discrimination clauses in awards and enterprise agreements. In doing so, however, we do not believe that those words should be seen as necessarily referable only to the Anti-Discrimination Act (which contention was emphasised by the ADB), but should also have regard to those circumstances which may be embraced within the meaning of an employee being responsible for the care of a person as defined within the Personal/Carer's Leave provisions in State awards as well as those circumstances where the commonly understood meaning of carer may sensibly and reasonably be applicable. In other words, by inserting the words "and carer" we do so in the sense that employers and employees are alerted to important considerations referable to their obligations where the request to an employee to work overtime may be considered in all the relevant circumstances to be unreasonable.

18 For these reasons we determine that the words "and carer" should be added to clause 1.3.2 of the otherwise agreed clause.

19 We consider that the agreed clause as modified by the industrial parties is not a departure from the clause awarded by the AIRC. To the extent that we have included the additional words sought by the ADB, we do not consider it represents a significant departure from the approach of the AIRC within the ambit of family responsibilities. The words are, in any event, likely to be embraced within the provision awarded by the AIRC both as to "personal circumstances" and "family responsibilities".

The clause awarded will read: 1.1 Subject to clause 1.2, an employer may require an employee to work reasonable overtime at overtime rates. 1.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable. 1.3 For the purposes of clause 1.2 what is unreasonable or otherwise will be determined having regard to: 1.3.1 any risk to employee health and safety; 1.3.2 the employee's personal circumstances including any family and carer responsibilities; 1.3.3 the needs of the workplace or enterprise; 1.3.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and 1.3.5 any other relevant matter.

21 The Full Bench determines, pursuant to ss 50 and 52 of the Industrial Relations Act, that the proposed clause shall be inserted upon application into awards that specify ordinary hours of work and provide for the working of overtime.

22 The orders to give effect to our decision will be operative from today.

      INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
      FULL BENCH
                                                          CORAM: Wright J, President
                                                                          Walton J, Vice-President
                                                                          Boland J
                                                                          Staunton J
                                                                          Tabbaa C
                                                                      Thursday 10 April 2003

Matter No IRC 4314 of 2002 Re STATE WORKING HOURS CASE 2003 Summons to Show Cause - Commission on its own initiative pursuant to Part 3 of Chapter 2 of the Industrial Relations Act 1996.

DECISION OF THE COMMISSION [2003] NSWIRComm 86

1 On 26 July 2002, the Commission issued a Summons to industrial parties to appear before it to show cause why, after considering the decision of the Australian Industrial Relations Commission (AIRC) in the Working Hours Case July 2002 given on Tuesday 23 July 2002 (PR072002; now reported at (2002) 114 IR 390), the Full Bench should not take such action pursuant to Part 3 of Chapter 2 of the Industrial Relations Act 1996 as it may deem proper. We have re-titled the proceedings to ensure that the title by which this decision is referred to, reflects current Commission practice.

2 Part 3 of Chapter 2 of the Industrial Relations Act includes ss 50 and 52 which provide: 50 Adoption of National decisions

(1) As soon as practicable after the making of a National decision, a Full Bench of the Commission must give consideration to the decision and, unless satisfied that it is not consistent with the objects of this Act or that there are other good reasons for not doing so, must adopt the principles or provisions of the National decision for the purposes of awards and other matters under this Act.

(2) A Full Bench of the Commission is to give consideration to the National decision either on application or on its own initiative.

(3) The principles or provisions of a National decision may be adopted: (a) wholly or partly and with or without modification, and (b) generally for all awards or other matters under this Act or only for particular awards or other matters under this Act. (4) The principles or provisions of a National decision so adopted may be varied by a Full Bench of the Commission, whether or not another National decision is made. 52. Variation of awards and other orders on adoption of National decisions or making of State decisions A Full Bench of the Commission may, when adopting the principles or provisions of a National decision or making a State decision, make or vary awards, or make other orders, to the extent necessary to give effect to its decision. 3 A 'National decision' is defined in section 48 of the Industrial Relations Act as: A "National decision" is a decision of a Full Bench of the Australian Industrial Relations Commission that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to its jurisdiction.

4 In the Working Hours Case July 2002 decision (the National decision), the AIRC determined a claim brought by the Australian Council of Trade Unions (ACTU). Encompassed within the AIRC decision was also a claim brought by the Australian Chamber of Commerce and Industry (ACCI). To the extent that the Australian Commission's decision dealt with the ACCI claim, it does not require consideration in these proceedings.

5 The ACTU's claim, generally referred to as the 'Reasonable Hours claim', comprised applications by a number of unions to vary fourteen awards and to insert in them, as a test case standard, provisions relating to hours of work.

6 The ACTU's claim was that the Australian Commission should award, as a test case standard, the following three sub-clauses: 1 Reasonable Hours of Work 1.1 An employer must not require an employee to work unreasonable hours of work. 1.2 Without limiting the generality of paragraph 1.1, the following are to be considered in determining what are unreasonable hours of work: (a) the total number of hours that exceed the ordinary, or in the case of part-time workers the agreed hours of work; (b) the total number of hours worked on any particular day or shift; (c) the total number of hours worked over an extended period; (d) the number of hours worked without a break; (e) the time off between shifts; (f) the risk of fatigue; (g) the remuneration received for excess hours worked; (h) the rostering arrangements; (i) the extent of night work; (j) an employee's workload; (k) work intensification resulting from understaffing, and the ability of workers to meet targets while working reasonable daily hours; (l) the time required to achieve remuneration in accordance with performance based pay schemes; (m) the exposure to occupational health and safety hazards; (n) an employee's social and community life; or (o) an employee's family responsibilities.

2.1 Subject to this clause an employer may require an employee to work reasonable overtime at overtime rates - other than employees employed part-time in accordance with clause x (parental leave) of this award who cannot be required to work overtime against their wishes. 2.2 An employee may refuse to work hours in excess of ordinary hours on a particular day for reasons which may include, but not be limited to, the employee's family responsibilities or the pre-arranged personal commitments of the employee.

3 Paid Breaks after Extreme Working Hours 3.1 The provisions of this sub-clause shall apply to each type of employment, each classification and skill based career path provided for in this Award. 3.2 An employee who has worked: (a) an average of 60 hours per week over a four week period; or (b) 26 days over a four week period; or (c) an average of 54 hours per week over an eight week period; or (d) 51 days over an eight week period; or (e) an average of 48 hours per week over a twelve week period; or (f) 74 days over a twelve week period; shall be entitled to a break of 2 full days before working again and to be paid for those 2 days. 3.3 An employee cannot accrue more than 2 days entitlement in accordance with paragraph 3.2 in relation to the same period of time. 3.4 The 2 days entitlement provided in paragraph 3.2 must be taken within seven days of the entitlement accruing. 3.5 The entitlement provided for in paragraph 3.2 must be taken contiguous with another non-working day which falls within the period set out in paragraph 3.4. 3.6 If an employee is not given the entitlement provided for in paragraph 3.2 within seven days of the entitlement having accrued, the employer must pay the employee an extra hourly or part thereof payment at the rate of 0.5 of the ordinary hourly rate from the end of the seven day period referred to above until the rest break is given. 3.7 The entitlement provided for in paragraph 3.2 is in addition to all other rest break and leave entitlements set out in this award. 3.8 No regard is to be had to sub-clause 3 in the application of sub-clause 1, in particular hours of work less than those described in paragraph 3.2 may be unreasonable.

7 In its decision, the AIRC noted that working time arrangements and patterns of work had changed significantly in Australia over recent decades. Overall, it found that the weekly hours of work by full time employees had increased over the past two decades from 38.2 in August 1982 to 41.3 in August 2001, with a substantial reduction in the proportion of workers working what has traditionally been referred to as "standard hours".

8 As well, it was noted that a significant proportion of employees work overtime hours which are unpaid across a range of occupations, industries and income levels.

9 The AIRC, having regard to the evidence placed before it, said in the Statement accompanying its reason for decision: [6] The evidence satisfies us that the working of long hours is likely to give rise to a risk of fatigue and to adverse health consequences, but that a number of factors, including non-work factors, will impact on whether the number of hours worked cause fatigue or such consequences. The relationship between working hours and family and community life is an important issue. In some cases, earnings from longer working hours relieve the stress resulting from financial difficulties. In other cases, long working hours have negative consequences. Whether negative consequences occur often depends on a range of factors such as the extent of an employee's family responsibilities and his or her engagement in community activities.

[7] We think that there would be instances where the working of extended hours would adversely affect productivity, particularly where the employees concerned are engaged in cognitive tasks that are more susceptible than other tasks to the effects of fatigue on performance. We accept that fatigued employees may be a risk to the public and that there are public health costs associated with disease which may arise from the working of long hours.

10 In making the findings it did, the AIRC rejected the ACTU's claim as specifically expressed in sub-clauses (1), Reasonable Hours of Work, and (3), Paid Breaks after Extreme Working Hours, as detailed above. In relation to sub-clause (2), Reasonable Overtime, of the ACTU's claim, the Australian Commission noted that the ACTU had stated that the sub-clause was intended to reflect the existing safety net and that it was not the ACTU's intention to make the sub-clause an issue. For that reason, having regard to the evidentiary findings as to the potential adverse effects of extended working hours on employees, and the contribution of unreasonable overtime to such an outcome, the AIRC determined to award as a test case standard, a provision that: … will confer a right on an employee to refuse to work overtime in circumstances where the working of such overtime would result in the employee working unreasonable hours. It will permit the employee's ordinary hours to be taken into account in deciding whether overtime is unreasonable, but the right of refusal it confers will operate only in relation to overtime. The provision is only intended to be included in awards that specify ordinary time and provide for overtime. It will include a reference to the well established right of an employer to require an employee to work reasonable overtime. The provision we have decided on is the following: 1.1 Subject to clause 1.2 an employer may require an employee to work reasonable overtime at overtime rates. 1.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to: 1.2.1 any risk to employee health and safety; 1.2.2 the employee's personal circumstances including any family responsibilities; 1.2.3 the needs of the workplace or enterprise; 1.2.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and 1.2.5 any other relevant matter.

11 In awarding the provision, the AIRC said: [279] An employee's right to refuse to work overtime in circumstances where the working of such overtime would result in the employee working unreasonable hours is implicit in the existing award provisions dealing with the obligation to work reasonable overtime. But we think that there are a number of advantages in making such a right explicit and moreover the evidence before us supports the creation of an award right of the type we have determined. The provision of an explicit right to refuse to work overtime in the circumstances specified will provide employees with a firmer basis upon which to refuse to work unreasonable overtime. In this context the ANOP Study recounts that some of the employees in the focus groups expressed the view that providing employees with the right to say no to working overtime was a positive step.

[280] The criteria we have adopted in relation to the exercise of the right to refuse to work overtime are also generally supported by the material before us. A majority of the employer respondents (64.3 per cent) to Professor Benson's survey of AIG and AHEIA members supported an employee's right to refuse to work overtime on a particular day on the basis of the employee's family responsibilities. Further, the survey respondents overwhelmingly supported the inclusion of criteria referring to the needs of the business (95.2 per cent) and to an employer's responsibility to provide a safe and healthy work environment (93.6 per cent). 12 Further, the AIRC stated that it might be appropriate to review the effectiveness of the provision it awarded after the provision has been in operation for some time.

13 Following the issuing of the Summons to Show Cause, the matter first came before the President for directions on 2 August 2002. On that occasion, appearances were entered by a number of relevant industrial parties including the Minister for Industrial Relations and the Public Employment Office (PEO). As well, the President of the Anti-Discrimination Board (ADB) sought leave to intervene pursuant to s 167(2) of the Industrial Relations Act.

14 On that occasion, the industrial parties indicated that there was considerable merit in pursuing discussions between them with an intention to report back to the Commission in September.

15 Opposition to the intervention of the ADB was raised by Employers First (EF), Australian Business Industrial (ABI) and the Australian Industry Group (AIG). Interim submissions were sought from the industrial parties on the issue. Primarily, the parties were directed to continue discussions and negotiations and to report back. The negotiations were to include a representative of the President of the ADB. Subsequent reports to the Commission in September, October and December indicated that the parties were moving to a consent position. Directions were given for the filing of final written submissions with the matter to be heard on 19 February and, if required, 20 February 2003.

16 On 16 December 2002, the Full Bench issued a Statement granting leave to intervene to the President of the ADB (see Re State Working Hours Case 2002 - Statement of the Full Bench [2002] NSWIRComm 350), noting at para [4]: The Full Bench has now had the opportunity of considering the submissions which, in some cases, are detailed and raise a number of matters of apparent substance which may be relevant to the jurisprudence of the Commission. Notwithstanding the detail of the submissions opposing the intervention, we have come to the firm conclusion that the ADB has established an appropriate basis for leave to intervene to be granted. Of course, the grant of leave to intervene does not give the intervenor the status or standing of a party to the proceedings and the role of an intervenor is always subject to the Commission's discretion as to the extent of the role that an intervenor might appropriately play in the proceedings.

17 As foreshadowed in the Statement of 16 December 2002, we will elaborate the reasons for the grant of leave to intervene later in this decision.

18 The Labor Council contended that the Commission should make orders in the following terms:

1.1 Subject to clause 1.2, an employer may require an employee to work reasonable overtime at overtime rates. 1.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable. 1.3 For the purposes of clause 1.2 what is unreasonable or otherwise will be determined having regard to: 1.3.1 any risk to employee health and safety; 1.3.2 the employee's personal circumstances including any family responsibilities; 1.3.3 the needs of the workplace or enterprise; 1.3.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and 1.3.5 any other relevant matter.

19 In placing the proposed clause before the Commission, the Labor Council indicated that it was agreed by all of the industrial parties to the negotiations that had taken place, except for the President of the ADB, who would be submitting that the additional words "and carer" should be added to clause 1.3.2 of the otherwise agreed clause.

20 The Labor Council indicated that, in seeking the approval of the Commission to the above clause, it supported the implementation of the decision of the Australian Commission for State awards by way of application, that there were good reasons for making the orders as sought, and the making of such orders would be consistent with the objects of the Industrial Relations Act.

21 The Labor Council did not oppose the intervention of the President of the ADB. As to the proposed additional words sought by the ADB, the Labor Council indicated its support for the ADB's alternative proposal as set out in para [48] of this decision.

The Minister for Industrial Relations and the Public Employment Office

22 The Minister for Industrial Relations and the PEO submitted that, in the context of the legislative provisions relating to the implementation of National decisions, it was appropriate that the decision of the AIRC be applied to New South Wales awards.

23 It was emphasised that, in the case before the AIRC, the New South Wales Government, amongst others, had supported the key principles that underpinned the ACTU's application and the development of a test case standard with respect to reasonable hours. The New South Wales Government, however, had reserved its position with regard to the precise terms of the clause. In its submission to the AIRC and re-emphasised before us, the New South Wales Government gave "in principle" support for the following principles: (1) Principle One : Employers should be prohibited from requiring employees to work unreasonable hours;

(2) Principle Two : It is appropriate for the Commission to set down criteria to determine whether hours of work are unreasonable. The Commission should develop and apply those criteria collectively and not in isolation;

(3) Principle Three : It is appropriate to provide employees with additional work breaks if they have been required to work excessive hours; and

(4) Principle Four : Principles in relation to reasonable hours of work should be applied with proper and appropriate regard to the context and particular circumstances of industry.

24 In supporting the application of the National decision in accordance with s 50(1) of the Act, the Minister and the PEO submitted that it was in the interests of comity between this jurisdiction and the Federal jurisdiction that the outcome of the AIRC decision now be applied in the New South Wales jurisdiction. In saying that, the Minister submitted that it was appropriate in the New South Wales jurisdiction that the term "family responsibilities", a sub-set of the term "personal circumstances" in the Federal clause, should be understood to cover the same persons as the range of persons currently covered by Personal/Carer's Leave entitlements in State awards.

25 On 5 November 2002, as part of the preparation of material to allow a proper consideration of this matter, the President had made orders requiring the Minister and the PEO to file and serve evidence as to the overtime provisions in State awards.

26 Those parties, in attending to that matter, concluded that due to the large number of small coverage awards and the technological constraints associated with searching all State awards, a survey of the major 108 private sector and 27 public sector awards would provide a useful indication or sample of overtime clauses as they appear in State awards.

27 The survey of the stated private and public sector awards categorised overtime provisions in the awards as they appear in the following manner: (a) awards which contain provisions for 'reasonable overtime'; (b) awards which contain provisions for 'overtime'; (c) awards which 'prohibit' overtime; (d) awards which are 'silent' on overtime; and (e) awards which contain a 'time off in lieu' provision in relation to overtime.

28 The outcome of the survey undertaken by the Minister's Department and the PEO was as follows:

a) b) c) d) e) PRIVATE SECTOR 47% 50.9% 1% 1.8% 47% Surveyed: 108 Awards PUBLIC SECTOR 22% 41% 0% 37% 26% Surveyed: 27 Awards ALL AWARDS 41.5% 49% 0.5% 9% 43% Total Surveyed: 135 Awards

29 The Minister and the PEO did not oppose the intervention of the ADB and joined and supported the submission of the Labor Council of New South Wales that the proper approach to the amendment to clause 1.3.2 sought by the ADB was to adopt the ADB's alternative proposal. In elaborating that submission it was acknowledged that there was an inconsistency between the meaning of a person "being responsible for the care" of a person as defined in the Personal/Carer's Leave provisions in New South Wales awards and the definition of "responsibilities as a carer" as contained in s 49S of the Anti-Discrimination Act 1977. That section provides as follows: 49S Meaning of "responsibilities as a carer" (1) A reference in this Part to a person's "responsibilities as a carer" is a reference to the person's responsibilities to care for or support:

(a) any child or step-child of the person (whether or not under the age of 18 years) who is: (i) wholly or substantially dependent on the person, or (ii) in need of care or support, or

(b) any child or adult who is in need of care or support and: (i) of whom the person is guardian, or (ii) for whom the person has parental responsibility under a law of the Commonwealth or this State, or (iii) in relation to whom the person is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998, or

(c) any immediate family member of the person who is in need of care or support, being one of the following: (i) a spouse or former spouse of the person or of a spouse or former spouse of the person, (ii) a grandchild or step-grandchild of the person or of a spouse or former spouse of the person, (iii) a parent or step-parent of the person or of a spouse or former spouse of the person, (iv) a grandparent or step-grandparent of the person or of a spouse or former spouse of the person, (v) a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person. (2) A reference in this Part to a person's responsibilities is a reference to responsibilities:

(a) that the person has, or (b) that the person is thought to have (whether or not the person in fact has the responsibilities), or (c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or (d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities). (3) In this section: "de facto relationship" has the same meaning as in the Property (Relationships) Act 1984. "spouse" of a person means: (a) the husband or wife of a person, or (b) the other party to a de facto relationship with a person. "step-child" or "step-grandchild" of a person means: (a) a child or grandchild of the spouse or former spouse of the person, or (b) a step-child or step-grandchild of the spouse or former spouse of the person (being a child or grandchild of the spouse's former spouse). (4) A reference in this section to a child, step-child, grandchild, step-grandchild, parent, step-parent, grandparent, step-grandparent, brother, sister, step-brother or step-sister of a person or of a spouse or former spouse of a person:

(a) includes a reference to persons whose relationship arises because of adoption, guardianship or fostering or because of the allocation of parental responsibility under a law of the Commonwealth or this State, and (b) includes a reference to persons whose relationship arises because of the birth of a child whose parents are not married to each other and are not parties to a de facto relationship with each other, and (c) in relation a reference to a brother or sister, includes a reference to a half-brother or half-sister.

30 It was the primary submission of the Minister and the PEO that, in terms of award entitlement and in the interests of consistency in the jurisdiction, the State Personal Carer's Leave Case - August 1996 (1996) 68 IR 308 provisions should be the formulation adopted or understood if the words "and carer" were inserted in the proposed clause 1.3.2.

31 In recognising that such an approach would not pick up the classes of carer caught by s 49S of the Anti-Discrimination Act, the Minister and the PEO submitted that the appropriate way to address the inconsistency was to have regard to the issue generally within the body of the Commission's decision specifically by reference to the Personal/Carer's Leave award provisions as well as s 49S of the Anti-Discrimination Act. In other words, if it is to be acknowledged that "personal circumstances" and its sub-set "family responsibilities" are to be given the widest possible construction, as they should be, regard should be had to both the legislative definition of "responsibilities as a carer" as defined in the Anti-Discrimination Act as well as the Personal/Carer's Leave provisions for awards as first approved by this Commission in 1996.

Employers First / Australian Retailers Association (NSW Division) (EF/ARA)

32 On behalf of the EF/ARA it was submitted that the decision of the AIRC was a National decision and that there was a proper jurisdictional basis for proceeding in this matter. Further, it was agreed that in adopting the proposed clause, the Commission should approve it to be inserted into State awards, subject to application and in relation to those awards where there is an ordinary time hours clause and provision for the payment of overtime.

33 In common with the other industrial parties to the negotiations that had preceded the hearing before us, the EF/ARA indicated their agreement with the clause as proposed by the Labor Council. They joined in the submission that the minor change in the terms of the clause as approved by the AIRC was an improvement by way of clarification and was not a departure from the tenor of the AIRC's decision.

34 The EF/ARA opposed the amendment to clause 1.3.2 as proposed by the President of the ADB. It was submitted that the insertion of those words was a departure from the AIRC's decision without good reason. Further, any application of the word 'carer' could properly be construed by a broad approach to the various sub-sets of clause 1.3 both as to family responsibilities as part of an employee's personal circumstances and particularly clause 1.3.5 "any other relevant matter." It was submitted reference to the latter sub-set for the purpose of awards in New South Wales would encompass the provisions of the Anti-Discrimination Act, not only as to "responsibilities as a carer", but as to any other grounds covered by that legislation relevant to employment generally.

35 EF/ARA also emphasised the fact that reference only to s 49S of the Anti-Discrimination Act in respect of "responsibilities as a carer" would narrow the circumstances that might otherwise be picked up by taking a broad approach as to what could properly be regarded as 'personal circumstances', with 'family responsibilities' as a sub-set. Overall, it was submitted, there are different understandings and interpretations as to what carer's responsibilities could and do mean both in common usage and diverse legislative as well as award prescriptions. The clause as proposed to be approved by the Commission should not be constrained by reference to the Anti-Discrimination Act.

36 In opposing the application for intervention by the ADB, EF/ARA stated that if the President of the ADB was an intervener then submissions made on his behalf must be looked at in that light and not as an applicant. On that point the submissions made by the ADB go further than the role of an intervener and were made in terms of a party acting more as a principal than as an intervener.

37 ABI supported the submission of EF/ARA, and with all other industrial parties sought the Commission's approval to the proposed clause as agreed. ABI submitted that the decision of the AIRC was a National decision and supported the submissions of EF/ARA as to the jurisdictional basis of the present proceedings. It further submitted that, in approving the agreed proposed clause, the clause should be approved on the basis that it is inserted into awards by way of application, and to those awards where there is an ordinary hours clause and provision for the payment of overtime.

38 ABI did not support the additional words as proposed by the President of the ADB. The basis of its opposition to the proposed amendment was that, in the first instance, the current wording of the proposed clause 1.3.2 in exhibit 1 is properly reflective of the decision of the AIRC. In any event, the wording as agreed between the industrial parties does not exclude, having regard to personal circumstances and family considerations, responsibilities as a carer. Further, the President of the ADB is an intervener and as the wording proposed by the ADB is not supported by any party to the matter before the Commission, the Commission should not lightly depart from the agreed position. It was also submitted that employers in New South Wales are required to comply with the provisions of the Anti-Discrimination Act and it is not necessary to further re-state their obligations for the purposes of this clause.

39 Finally, it was submitted, any significant deviation from the decision of the AIRC would have the effect of signalling to award users some difference of approach as to assessing the reasonableness of overtime other than that intended by the AIRC's provisions.

40 The AIG supported the submissions of EF/ARA and ABI in relation to the construction of the proposed clause and also the position as enunciated by them concerning the application by the ADB to further amend the agreed proposed clause. In joining with them in opposing the application by the President of the ADB, the AIG stated that what was proposed by the ADB did depart from the AIRC decision and that the reasons for doing so as submitted by the ADB are not sufficient for the Commission to depart from the National decision in accordance with s 50 of the Industrial Relations Act.

41 Further, to the extent that it did diverge from the National decision, it could potentially leave employers and employees in a situation where, if circumstances arose that required access to the proposed clause, there may be some concerns as to its applicability. Reliance on the sub-set in 1.3.5 of "any other relevant matter" would more than adequately address the concerns expressed by the President of the ADB.

42 Finally, it was stated that the State Wage Case 1999 (1999) 88 IR 363 inserted an anti-discrimination clause into all awards in New South Wales. This places an obvious obligation on the parties to ensure that no clause in an award has the effect of putting parties in a discriminatory situation vis-a-vis a person's employment.

43 The President of the ADB sought two decisions from the Commission. The first was leave to intervene in the proceedings, and the second was the insertion of the words "and carer" in clause 1.3.2 of the proposed reasonable hours clause.

44 As to the application for intervention, the ADB cited in the first instance the provision of s 167(2) of the Industrial Relations Act which grants the President of the ADB the right to seek intervention in any proceedings before the Commission if the President establishes that "the proceedings concern unlawful discrimination under the Anti-Discrimination Act".

45 Having regard to that provision, the ADB submitted that those matters in the proceedings before us which concern unlawful discrimination were as follows: (i) the proceedings were brought pursuant to s 50 of the Act and are intended to flow on a decision of the AIRC dealing with hours of work and in particular the working of overtime. (ii) The ADB has received inquiries that suggest that the organisation of work, including overtime, sometimes occurs in ways which are unlawfully discriminatory. (iii) In addition, there is extensive jurisprudence in the area of discrimination law that suggests that issues of discrimination continue to arise in the organisation of work. (iv) The President sought to make submissions in relation to the reference in the AIRC reasonable hours clause to "family responsibilities" having regard to the fact that New South Wales legislation (for example, s 49S of the Anti-Discrimination Act ) refers to responsibilities as a carer. (v) The ADB is of the view that the clause should make reference to as broad a class of persons as possible, and is concerned that "family responsibilities" may be interpreted in a narrow way particularly having regard to its definition in Federal legislation. "Family responsibilities" is defined in s 4A of the Sex Discrimination Act 1984 (Cth) and does not specifically include responsibilities in relation to a foster child, a child or adult of whom the employee is guardian, a child or adult for whom the person has parental responsibility under a state or Commonwealth law, a child or adult in relation to whom the person is an authorised carer, the same-sex de facto partner, a step-grandchild, step-parent, step-grandparent, step-brother or step-sister. (vi) By contrast, the provisions of the New South Wales Anti-Discrimination Act have effect in relation to carer's responsibility in the circumstances of all the relationships described above. It is unlawful for an employer to discriminate against an employee on the basis of a carer's responsibility.

46 All of these reasons, it was submitted, were grounds for the President of the ADB being given leave to intervene in these proceedings pursuant to s 167 of the Act. If the Commission is satisfied that the proceedings concern unlawful discrimination, then such intervention is as of right. The ADB submitted that this was a matter that concerned potential unlawful discrimination. Accordingly the ADB should have leave to intervene pursuant to s 167(2) and to assist the Commission to prevent and eliminate discrimination in the workplace.

47 In seeking to include the words "and carer" in the ambit of clause 1.3.2 of the proposed reasonable hours clause, the ADB submitted that the words should be included for the following reasons: (i) the New South Wales Anti-Discrimination Act 1977 refers to a person's "responsibilities as a carer" at Part 4B, not "family responsibilities"; (ii) the Industrial Relations Commission is required under section 169(1) of the Industrial Relations Act 1996 to take into account the principles of the Anti-Discrimination Act which includes a consideration of the provisions of that Act; (iii) issues of discrimination arise in the organisation of working time; (iv) concerns that the use of the word "family" in the federal reasonable hours decision will be interpreted having regard to the definition of "family responsibilities" in the Sex Discrimination Act 1984 (Cth). That Act includes a narrow definition of family which also excludes a number of relationships that are included in Part 4B of the New South Wales Anti-Discrimination Act ; (v) concerns that the use of the word "family" in New South Wales awards may be similarly narrowly construed in a manner which results in unlawful discrimination; (vi) pursuant to section 146(2) of the Industrial Relations Act the Commission must have regard to the objects of that Act which includes preventing and eliminating discrimination in the workplace (s 3(f)); (vii) New South Wales awards already contain Personal/Carers' Leave provisions (not "family" as appears in Federal awards) (viii) as discrimination is an industrial issue which arises under both the Anti-Discrimination Act and the Industrial Relations Act there is merit in adopting consistency of language where appropriate.

48 In the alternative, the ADB submitted, if the Commission were to determine not to include reference to "carer responsibilities" in any reasonable hours clause, then the Commission should make it clear in its decision that the word "family" is to be construed broadly and specifically includes those relationships covered by the carer responsibility provisions of the Anti-Discrimination Act.

49 The alternative submission was supported by the Labor Council of New South Wales and the Minister for Industrial Relations and the PEO.

50 We are satisfied that the Working Hours Case July 2002 decision of the AIRC is a "National decision" as defined by s 48 of the Industrial Relations Act which the Commission is obliged to consider in accordance with the provisions of s 50 of the statute.

51 The AIRC determined to award a test case standard that will confer a right on employees to refuse to work overtime in circumstances where the working of overtime would result in the employee working unreasonable hours. In approving that test case standard, it set out certain pre-requisites as contained in para [14] of the Statement accompanying the AIRC's reasons for decision.

52 Section 50 of the Industrial Relations Act provides that as soon as practicable after the making of a National decision, a Full Bench of the Commission must give consideration to the decision and, unless satisfied that it is not consistent with the objects of this Act or that there are other good reasons for not doing so, must adopt the principles or provisions of the National decision for the purposes of awards and other matters under the Industrial Relations Act.

53 In granting part of the ACTU's claim, the AIRC accepted evidence that satisfied it of the significant change of working arrangements and patterns of work that had occurred in Australia over the past two decades. The AIRC further accepted the evidence that Australia is one of the few OECD countries where the trend to longer full time working hours has been demonstrated. Australia, it was found, has average working hours that seem longer than most other OECD countries with average annual hours tending towards the very top of the rankings, comparable with the United States, although not as high as Korea.

54 In considering the evidence that was placed before it, the AIRC determined to reject the ACTU's claim for a test case standard in the terms sought, but to award a test case provision of a more limited kind.

55 All of the industrial parties in the matter have reached consensus not only that a similar provision shall be determined for New South Wales awards but also as to the precise wording of any proposed clause (albeit different in one respect to the National decision).

56 Section 50(1) of the Industrial Relations Act requires us to adopt the National decision unless we are satisfied that it is inconsistent with the objects of the Act or that there are other good reasons for not doing so.

57 Having regard to s 3, Objects, of the Industrial Relations Act, we are satisfied that the issue of the working of overtime and the nature of any request to work overtime and the circumstances in which such a request would be considered unreasonable falls squarely within the objectives or purposes of the statute.

58 We can find no good reason for not adopting the National decision on this matter. The AIRC found that unreasonable and/or extended hours worked within the context of overtime had an adverse impact on a worker's ability to function productively in their work, family and community life. Those findings would properly apply across a wide range of industries and occupations, whether or not the workers affected are covered by federal or State industrial prescription. There could be no reason to conclude that the evidentiary findings made by the AIRC on the matter before it would not apply equally to workers employed under New South Wales awards.

59 It is our view that it is eminently reasonable and appropriate that an order be made to allow insertion into State awards of a clause providing for the working of reasonable overtime and specifying the circumstances in which a request to work overtime may be considered unreasonable. The clause was awarded by the AIRC on the basis that it "should provide some guidance to the parties on the matters that should be taken into account in deciding whether the working of overtime would result in an employee working unreasonable hours." Further, as the AIRC elaborated at para [278]: We shall include reference to the circumstances of the employer. We are also conscious that the provision must be capable of application to a broad range of situations. For that reason we think it is preferable to deal with matters on a general level rather than to attempt to list every factor which might possibly be relevant. We do not intend that the provision should, as a general rule, be applied so as to interfere with rostered overtime particularly when the roster has been agreed in advance. Partly for that reason we shall include reference to the amount of notice (if any) which has been given of the requirement to work overtime and to the amount of notice (if any) given by the employee of the intention to refuse the overtime. The provision is only intended to be included in awards that specify ordinary time and provide for overtime. It will include a reference to the well established right of an employer to require an employee to work reasonable overtime.

60 The clause agreed to by the industrial parties properly reflects the approach and intent of the AIRC, modified only to clarify on a more objective approach, those circumstances in which the working of overtime may be considered unreasonable. We see merit in that approach.

The application to intervene and additional words proposed by the President of the ADB to clause 1.3.2 of the proposed clause

61 On 16 December 2002, we issued a Statement granting leave to intervene to the President of the ADB in this matter. In doing so, as we have already commented, the leave to intervene was circumscribed as set out in para [4] of the Statement.

62 Section 167(2) of the Industrial Relations Act 1996 provides:

167 Intervention by Minister, ADB and State peak council (1) … (2) The President of the Anti-Discrimination Board may intervene in any proceedings of the Commission if the President of that Board establishes that the proceedings concern unlawful discrimination under the Anti-Discrimination Act 1977.

63 Section 169 of the Act states, relevantly: 169 Anti-discrimination matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977 . (2) … (3) … (4) An industrial instrument may be varied at any time by the Commission in order to remove any unlawful discrimination arising from the instrument. An application for such a variation: (a) may be made by a party to the instrument, and (b) may be made by the President of the Anti-Discrimination Board with the leave of the Commission. 64 The Industrial Relations Act contains a series of provisions in relation to the Anti-Discrimination Act which, when read together, "form a scheme designed to incorporate Anti-Discrimination Act concepts into the industrial jurisdiction." Reference to that scheme is to be found in the decision of the Full Bench in the State Personal/Carer's Leave Case 1998 (1998) 84 IR 416, particularly at 428 and 429. While those pages deal with the issue by reference to the Crown's submissions in the matter, the approach as enunciated as to the statutory relationship between the Industrial Relations Act and the Anti-Discrimination Act is, we consider, correctly stated.

65 The words sought to be inserted by the President of the ADB in clause 1.3.2 of the proposed clause arise directly from the amendments made to the Anti-Discrimination Act, as provided in the Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000. This amendment introduced the grounds of responsibilities as a carer into the statute in the area of employment. The amendment makes it unlawful for an employer to discriminate, directly or indirectly, against an employee or an applicant for employment, on the grounds of the employee or applicant's responsibilities as a carer. The amendment commenced in 2001.

66 The requirement on the Commission to take into account the principles contained in the Anti-Discrimination Act has been considered in previous decisions of the Commission. By general order, anti-discrimination clauses were inserted into awards of the Commission as a result of the decision of a Full Bench of the Commission in the State Wage Case 1999. In that decision, the Commission noted that the genesis of the provisions sought by the parties (the clause being supported by all industrial parties and interveners in those proceedings) was the model anti-discrimination clause adopted by the AIRC for federal awards in the Third Safety Net Adjustment and Section 150A Review - October 1995 (1995) 61 IR 236 as later varied in Re Award Simplification Decision (1997) 75 IR 272.

67 The decision of the Full Bench of the Commission in the Review of the Principles for Approval of Enterprise Agreements 2000 (2000) 101 IR 332 at para [65] stated: The decision of the Full Bench in the State Wage Case 1999 reveals that, whilst the anti-discrimination clause did not create new legal obligations, it was recognised by the Full Bench as performing a potentially important function in some awards of this State, including the facilitation of conformity by industrial parties under awards with the objects of the Act in so far as they concern discrimination (and the provisions of s169(1) of the Act). The benefit of the provision may have been largely educative or illustrative, but it was nonetheless one which enhanced and facilitated the achievement of the objects of the Act to prevent discrimination in the workplace and thereby achieved the principles contained within the Anti-Discrimination Act 1977. By the introduction of an anti-discrimination clause in an award, the award became the instrument to facilitate this outcome.

68 On behalf of the ADB it was submitted that, to the extent that the Anti-Discrimination Act prohibits discrimination in employment on the grounds of, inter alia, "responsibilities as a carer", the allocation of overtime and the imposition on an employee of a requirement to work overtime by an employer may result in unlawful discrimination in certain circumstances. That latter statement is, we believe, on any view, entirely plausible. Further, the written submission on behalf of the President of the ADB stated at paragraph 7: The ADB has received enquiries that suggest that the organisation of work, including overtime, sometimes occurs in ways that concern unlawful discrimination.

69 The evidence of Ms Angelene Falk, the Legal and Policy Officer for the ADB, identified, in paragraph 10 of her affidavit filed 15 November 2002, direct workplace circumstances where such unlawful discrimination on the basis of carer responsibilities has actually and/or potentially arisen. As well, Appendix A to the submissions of the President of the ADB sets out the details of a complaint received by the ADB on the grounds of a person's responsibilities as a carer. None of the actual work-related circumstances as detailed on behalf of the ADB in the material before us was challenged by any of the industrial parties in the proceedings.

70 Section 3(f) of the Industrial Relations Act states that the objectives or purposes of the statute include "to prevent and eliminate discrimination in the workplace". We are satisfied that the leave to intervene granted to the President of the ADB in these proceedings was appropriately granted having regard both to s 3(f) and s 167(2) of the Act and prior decisions of the Commission on the issue. The proceedings before us concern potential unlawful discrimination on the basis of responsibilities as a carer as defined in s 49S of the Anti-Discrimination Act.

71 It should also be noted that in the decision in the State Wage Case 2001 (2001) 104 IR 438, at paras [101] and [102], the Full Bench formally ordered the requisite amendments to the State Wage Case Principles and the Principles for Approval of Enterprise Agreements, by incorporating into each set of principles the amendments made to the Anti-Discrimination Act arising from the Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000.

72 As already indicated, the Labor Council, the Minister for Industrial Relations and the PEO were supportive of the alternative proposal put by the ADB, if the Full Bench were not minded to grant the ADB's primary submission, by inserting the words "and carer" into clause 1.3.2 of the agreed clause. The alternative submission of the ADB has already been set out in this decision.

73 We consider the alternative approach is not appropriate. We do not see any utility in incorporating into a decision of this nature passing reference to something that is, on any view, important. We could not be confident that at any individual workplace at any time, immediate reference would be able to be made to the meaning of the word "family responsibilities" as implicitly extending to carers within the ambit of those words as a sub-set of personal circumstances or, necessarily, as "any other relevant matter". It is our view that if the words are to be utilised at all, they should be utilised in the body of the clause and not left simply within the text of a decision of the Commission which may not find its way to the workplace when these matters are being considered.

74 The Minister and the PEO also raised some inconsistency, as they perceived it, between the Personal/Carer's Leave provisions in State awards and the meaning attached there to an employee "being responsible for the care of a person." In other words, in their view, the meaning extended to that phrase in the Personal Carers/Leave provisions is different from that defined as ''responsibilities as a carer'' in the Anti-Discrimination Act. We do not agree with that submission. It may be that there is a need to more formally reconcile the apparent differences, as was raised in the proceedings. A review of the Personal/Carer's Leave Case provisions was foreshadowed in the decision of the Full Bench of the Commission in Re Nursing Homes, &c Nurses' (State) Award (2001) 110 IR 433 at para [45] to [47] as follows: [45] The Full Bench also noted at p436 of the 1998 Personal/Carer's Leave Case , that the parties "...were united in their submissions that the Commission should review the operation of the personal/carer's leave and bereavement leave provisions dealt with in the 1996 decision and in this decision, within a period of two years from the date of the judgment. We have determined to accede to that request having regard to the nature of the orders made in this decision." A proposal that such a review now be conducted by the Commission was advanced in further written submissions filed by the ADB, but was not supported by the other parties. [46] We note that neither the ADB nor any of the other parties drew attention to any difficulty with the operation of the existing personal/carer's provisions, which would give rise to the need for such a review. The Full Bench is itself not aware of any such problems. The provisions determined in the 1998 Personal/Carer's Leave proceedings were, of course, inserted into awards by general order. The principles established for review of awards under s 19 of the Act also require consideration to be given to test case decisions. Awards made by the Commission have now been reviewed under s 19 of the Act. It follows that if there were difficulties with the personal/carer's leave provision or their operation, they are likely to have come to the attention of the parties and the Commission in these s 19 award review proceedings. They have not. [47] The Commission has not to date moved to conduct the foreshadowed review. Given the position of the parties here, there is some doubt as to whether it is appropriate or necessary to conduct such a review. An application for such a review may be made in accordance with ss 51 or 167 of the Act. No such application has been made. In the circumstances the Commission will otherwise only consider whether it is appropriate to conduct such review, if a major industrial party or the ADB applies for a Full Bench to do so, acting of its own initiative in accordance with s 51(2) of the Act. 75 In addition to the above considerations there is also, as employer representatives pointed out, the more common understanding of carer which may, in individual circumstances, travel beyond the formal statutory definition as provided for in the Anti-Discrmination Act and the award prescription in the Personal Carer's/Leave provisions.

76 One of the employers' objections to inserting the words "and carer" in clause 1.3.2 is based, in part, on the different meanings that, taking all of the above into account, does and could apply to those words. With that we agree; and for that reason we adopt the course we do. It was also argued that there should be strict adherence to federal decisions. On that issue we are not persuaded that reference by the AIRC to the words "family responsibilities" could not properly be seen to have been used in the familiar sense having regard to the provisions of the Sex Discrimination Act 1984 (Cth). We also accept the submission of the employer parties that, within the broad construction of "family responsibilities" as a sub-set of personal circumstances, coupled with the addition of "any other relevant matter" in clause 1.3.5, the broad nature of responsibilities as a carer could be said to be encompassed.

77 Nevertheless, on balance, we see some merit in inserting the words sought by the President of the ADB to broadly give conformity with the anti-discrimination clauses in awards and enterprise agreements. In doing so, however, we do not believe that those words should be seen as necessarily referable only to the Anti-Discrimination Act (which contention was emphasised by the ADB), but should also have regard to those circumstances which may be embraced within the meaning of an employee being responsible for the care of a person as defined within the Personal/Carer's Leave provisions in State awards as well as those circumstances where the commonly understood meaning of carer may sensibly and reasonably be applicable. In other words, by inserting the words "and carer" we do so in the sense that employers and employees are alerted to important considerations referable to their obligations where the request to an employee to work overtime may be considered in all the relevant circumstances to be unreasonable.

78 We consider that the agreed clause as modified by the industrial parties is not a departure from the clause awarded by the AIRC. To the extent that we have included the additional words sought by the ADB, we do not consider it represents a significant departure from the approach of the AIRC within the ambit of family responsibilities. The words are, in any event, likely to be embraced within the provision awarded by the AIRC both as to "personal circumstances" and "family responsibilities".

1. Pursuant to s 50 and s 52 of the Industrial Relations Act 1996, the Full Bench of the Industrial Relations Commission of New South Wales orders, for the purpose of awards and other matters under the Act, the adoption with modifications as contained in this decision, of the principles and provisions of the National decision of 23 July 2002.

2. Pursuant to order 1, the Commission orders that on application, those awards that specify ordinary time and provide for overtime shall be varied by the insertion of a provision in terms of, or to the effect of, the following clause:

1.1 Subject to Clause 1.2 an employer may require an employee to work reasonable overtime at overtime rates.

1.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

1.3 For the purposes of clause 1.2 what is unreasonable or otherwise will be determined having regard to: 1.3.1 any risk to employee health and safety; 1.3.2 the employee's personal circumstances including any family and carer responsibilities; 1.3.3 the needs of the workplace or enterprise; 1.3.4 the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and 1.3.5 any other relevant matter. 3. These orders shall operate on and from today until further order of the Commission. _________________________________

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