Warehouse Employees - Drug (State) Award [2001] NSWIRComm 37

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: KAVANAGH J

Date: Wed 21 February 2001 IRC851 OF 1999 WAREHOUSE EMPLOYEES DRUG (STATE) AWARD Notice of award review pursuant to s 19 of the Industrial Relations Act 1996

IRC1396 OF 2001 WAREHOUSE EMPLOYEES DRUG (STATE) AWARD Application by Shop, Distributive and Allied Employees Association, New South Wales, for variation to reflect changes as a result of the 1999 s19 award review process

REASONS 1 HER HONOUR: In this s19 Review the parties reached agreement as to a variation of the supported wage rate as stated in the Award. Arising out of the agreement the parties filed a s17 application for a variation of this award. It is the view of the Shop, Distributive and Allied Employees Association, New South Wales, the Industrial Relations Act 1996 (the Act) requires a s17 application to be filed to make such variations to an award. I do not consider the parties have to file a s17 application in a s19 Review by the Commission which involves an agreed variation to an existing provision in an Award. 2 Relevantly, s17 of the Act states: 17 Variation or rescission of award (1) The Commission may vary or rescind an award. (2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied. (3) An award may be varied or rescinded in any of the following circumstances only: (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. (4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

Note . Section 169 also enables an award to be varied at any time to remove unlawful discrimination. 3 Section 19 of the Act is also relevant. It states: 19 Review of awards (1) The Commission is required to review each award before September 2001 and subsequently at least once in every 3 years. (2) The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards. (3) The Commission must take account of the following matters in the review of awards: (a) any decision of the Commission under Part 3 or any other test case decision of the Commission, (b) rates of remuneration and other minimum conditions of employment, (c) part-time work, casual work and job-sharing arrangements, (d) dispute resolution procedures, (e) any issue of discrimination under the awards, including pay equity, (f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards, (g) any other matter relating to the objects of the Act that the Commission determines. (4) The Commission must also take account of the effect of the awards on productivity and efficiency in the industry concerned. (5) During a review of awards, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed. (6) The Commission is to make such changes to awards as it considers necessary as a result of a review. Note. In addition to submissions of relevant industrial organisations, the Minister, the President of the Anti-Discrimination Board and State peak councils may make submissions in pursuance of their general right of intervention in Commission proceedings under s167. 4 The Commission is empowered in the Review process under s19(6) to approve changes to an award "as it considers necessary". The Commission has been given guidance as to the effect of s19(6) in its stated Principles for Review of Awards State Decision (1998) 85 IR 38 at 47-48: (b) The construction of s19(6) of the 1996 Act. . . . The statutory injunction in s19(6) is mandatory, requiring that 'the Commission is to make such changes to awards as it considers necessary as a result of a review'. In our view, such changes must be made as part of the review process. The legislature did not intend that the fate of the changes found to be necessary be left to the Commission's direction being complied with by the award parties.

We observe that the s19 review process as part of industrial regulation by awards involves both new and different processes and obligations. They are philosophically different to the familiar processes available to award parties in the 1996 Act . . . It requires the Commission to make changes to the award which properly flow from the review process. That obligation could not be achieved by the giving of a possibly unenforceable direction to award parties that they make an application consistent with the view the Commission had formed in the review. . . . the Commission of necessity would have regard to other principles applicable to the making or variation of an award, such as the wage-fixing principles and would not act inconsistently with them. The parties would also be given an opportunity to be heard. Nevertheless, if the Commission formed the view in the review proceedings that a particular change to the award was required then, in order to satisfy the purpose of the review as specified in s19(2), it would be obliged to make the change as part of the review process in accordance with the mandatory provisions of s19(6).

To adopt any other approach would potentially make the review process a pointless exercise. The fate of awards judged as requiring modernisation, presumably as a result, in part at least, of a lack of attention by the award parties, would again be left to the same parties. Potentially, that would result in the award review process being a time consuming, expensive and ultimately futile exercise. 5 In this analysis as to the empowerment of the s19(6) provision, the Full Bench directed its attention to an issue where the Commission forms its own view as to an employment condition during the Review process. The matter before me is even less onerous an obligation as the parties have agreed to the amendment to wage rates so any such amendment is by consent. 6 The Full Bench of the Commission in the 1998 Principles for Review of Awards Decision also cautioned at 46: . . . the Commission is not given a general discretion in s19 to insert into an award being reviewed any other conditions which the Commission might consider a 'modern' award should contain. The review directed by s19 concerns the provisions of existing awards. Unless properly arising from the matters specified in s19 itself, during a review the Commission is not at liberty to insert into awards other conditions not already contained therein. If award parties wish to advance such matters they must, in our view, utilise the other provisions of the Act to which we have referred.

This section was relied upon by Schmidt J in Crown Employees (Public Service Conditions of Employment) Award 1997 [2001] NSWIRComm22 who expressed concern as to a provision she noted in a s19 Award Review. Her Honour however determined she would not interfere with a provision where a resolution could have the effect of introducing another condition of employment and effect other associated agreements. 7 In accordance with the view expressed by the Commission, with which I am bound, and noting the parties consent to the changes in the supported wage rate in the s17 application and that the variations are to an existing employment condition, I find the Commission can and is obliged to order the changes agreed to in accordance with the principles enunciated in s19(2) of the Act. 8 I am further satisfied the Commission is empowered to make the amendment by reference to the general principle enunciated in s10 of the Act which states: 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 9 I find the consent variation orders achieve the fair and reasonable conditions of employment contemplated by the Act and approve the variation as contained in the Schedule in accordance with the Commission's power under s19 of the Act. 10 In matter No. IRC1396 of 2001, I dismiss the s17 application.

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