State Working Hours Case 2003, Re [2003] NSWIRComm 86 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

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

[2003] NSWIRComm 86

Industrial Relations Commission (NSW)|2003-07-01|Before: Wright J, Walton J, Boland J, Staunton J, Mr J, Ms P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Wright J, Walton J, Boland J, Staunton J, Mr J

Catchwords

09/24/2002
10/15/2002
11/05/2002
02/19/2003 DATE OF JUDGMENT: 04/10/2003

Source

Original judgment source is linked above.

Catchwords

09/24/200210/15/200211/05/200202/19/2003 DATE OF JUDGMENT: 04/10/2003

Judgment (130 paragraphs)

[1]

CITATION : State Working Hours Case 2003, Re [2003] NSWIRComm 86 Labor Council of New South Wales Minister for Industrial Relations Public Employment Office Employers First PARTIES : Australian Business Industrial Australian Industry Group New South Wales Road Transport Association Housing Industry Group President of the Anti-Discrimination Board FILE NUMBER: IRC 4314 of 2002 CORAM: Wright J President; Walton J Vice-President; Boland J; Staunton J; Tabbaa C State Reasonable Hours Case - Decision of AIRC in Working Hours Case July 2002 - Whether a "National decision" - Whether AIRC decision should be applied to New South Wales awards - Agreement generally between parties - Anti-Discrimination Board seeks reference to "carer's responsibilities" in generally agreed clause - Whether Anti-Discrimination Board should be granted leave to intervene in proceedings - Intervention granted - Reference to carer's responsibilities inserted - Orders made pursuant to s 50 and s 52 of the Industrial Relations Act 1996. CATCHWORDS : Conditions of employment - Hours of work - State Reasonable Hours Case - Decision of AIRC in Working Hours Case July 2002 - Whether a "National decision" - Whether AIRC decision should be applied to New South Wales awards - Agreement generally between parties - Anti-Discrimination Board seeks reference to "carer's responsibilities" in generally agreed clause - Whether Anti-Discrimination Board should be granted leave to intervene in proceedings - Intervention granted - Reference to carer's responsibilities inserted - Orders made pursuant to s 50 and s 52 of the Industrial Relations Act 1996. Anti-Discrimination Act 1977 s 49S LEGISLATION CITED : Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000 Industrial Relations Act 1996 Pt 3 Ch2 s 3 s 48 s 50 s 52 s 167 s 169 Sex Discrimination Act 1984 (Cth) Award Simplification Decision, Re (1997) 75 IR 272 Nursing Homes, &c Nurses' (State) Award, Re (2001) 110 IR 433 Review of the Principles for Approval of Enterprise Agreements 2000 (2000) 101 IR 332 State Personal Carer's Leave Case - August 1996 (1996) 68 IR 308 CASES CITED : State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 State Wage Case 1999 (1999) 88 IR 363 State Wage Case 2001 (2001) 104 IR 438 State Working Hours Case 2002, Re - Statement of the Full Bench [2002] NSWIRComm 350 Third Safety Net Adjustment and Section 150A Review - October 1995 (1995) 61 IR 236 Working Hours Case July 2002 (2002) 114 IR 390 HEARING DATES: 08/02/2002; 09/24/2002; 10/15/2002; 11/05/2002; 02/19/2003 DATE OF JUDGMENT: 04/10/2003

[27]

      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

[44]

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.

[91]

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.

[121]

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.

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

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Judgment (130 paragraphs)

Legislation Cited (1)

Cases Cited (10)

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