Industrial Relations Commission New South Wales Medium Neutral Citation: Miscellaneous Workers Home Care Industry (State) Award [2022] NSWIRComm 1024 Hearing dates: 4 April 2022 Date of orders: 4 April 2022 Decision date: 06 April 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Miscellaneous Workers Home Care Industry (State) Award is rescinded pursuant to s 20(2) of the Industrial Relations Act 1996. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards – Review of awards – rescission of obsolete award Legislation Cited: Industrial Relations Act 1996 ss 19, 20 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Local Government NSW New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU") Representation: I Mann (LGNSW) S Szabo (USU) File Number(s): 2021/201021 Publication restriction: No decision 1. On 4 April 2022 I ordered that the Miscellaneous Workers Home Care Industry (State) Award ("Award") be rescinded pursuant to s 20(2) of the Industrial Relations Act 1996 ("Act"). At the time I stated that the reasons for which I made the order would follow. These are those reasons. 2. On 9 August 2021 the Industrial Registrar issued a Notice of Award Review, giving notice of the Commission's intention to review the Award pursuant to s 19 of the Act. The Notice was issued to the following parties identified by the Registrar, from records kept by the Industrial Registry, as having an interest in the Award: 1. Aged & Community Services Association of NSW & ACT Incorporated; 2. Australian Federation of Employers and Industries; 3. Local Government and Shires Association of New South Wales ("LGNSW"); 4. New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU"); 5. National Union of Workers, New South Wales Branch; 6. Unions NSW; and 7. United Voice, New South Wales Branch. 1. The matter was listed for mention on 24 September 2021, 19 October 2021, 30 November 2021, 1 February 2022, 2 March 2022 and 4 April 2022. On each occasion, only LGNSW or the USU were represented. 2. At the mention on 19 October 2021 Mr I Mann, who appeared for LGNSW, informed me that that organisation was making enquiries to determine whether those that it represents continued to have an interest in the Award. He stated that "I'm in the process of putting out a survey to our members to determine if anyone is still using this award". 3. On 30 November 2021 Mr Mann informed me that a survey had been issued to LGNSW's members, and that based on the responses that had been received none of them were using the Award. He stated that LGNSW was seeking to determine whether any member who had not at that stage completed the survey was applying the Award. 4. I had the following exchange with Mr S Szabo, who appeared for the USU: "SZABO: At the moment we're still of the view that the award is relevant but I think it's our view and the view of Unions NSW that we wanted to look into this award more and into the new year, about coverage of a few of these awards, but in the meantime we're quite happy to proceed with just updating the award and still looking at updating some rates. We've just received some correspondence from the - well, we've received some part consent orders, hopefully, later in the week from Unions NSW about that as well. COMMISSIONER: Thank you. Mr Szabo, if the USU believes that the award still has application, would it not be prudent for it to share with Local Government NSW where it thinks it still has application? It may not be that it's a matter of the membership of LGNSW, but at least if - sorry, at least it might know where to direct its enquiries if you have information that Mr Mann does not. SZABO: I'll look into that and see if I can get something across to Mr Mann." 1. At the mention on 1 February 2022 I had the following exchange with Mr Szabo and Mr Mann: "COMMISSIONER: On the last occasion there was still some question as to whether this award continued to have any application to any employees. Have we made further progress in that respect? I think, Mr Szabo, it was with you. At that stage I think you were looking into that question a bit more directly. Have you made any progress in that regard? SZABO: Commissioner, not at this stage, I'm still making enquiries. COMMISSIONER: Thank you. Mr Mann, have you got anything to add? MANN: Commissioner, Local Government NSW has made some progress in that respect. So we conducted a survey of our membership and have not received any responses indicating that employees are either using or are interested in using this award in the future. However, I do still have just a couple of other boxes to tick before I'm satisfied to say that LGNSW doesn't maintain any interest. So I'm happy to take the discussion of whether this award still has use to local government offline and to discuss that with Mr Szabo and hopefully we should be able to give you the finalised position at the next call-over. COMMISSIONER: Thank you. At this stage I indicate that there seems to be some considerable doubt as to whether this award has any residual application and I'm rapidly coming to the position that if I can't be convinced that it does have application, then it may be simpler simply to rescind the award, so it will be on the parties to convince me that it does apply, if that makes sense. So I will stand the matter over to the call-over at 9am on 2 March 2022. As I say, at that stage I would expect the parties to be able to inform me one way or the other whether this award still has coverage. …" 1. At the mention on 2 March 2022 Mr Mann informed me that he had not been able to find any evidence that the Award was in use in the sector. I had the following exchange with Mr Szabo: "SZABO: Thank you, Commissioner, we've made enquiries as well and we weren't able to find any members covered by the award, however, our concern is that it's a sparse industry and there may be pockets where this award has coverage that we have not been able to identify at this stage. I guess our view is that we're seeking to keep the status quo and have the award remain in force and essentially allow the USU to take a deeper a look into this before the next award reviews, obviously if the Commission was minded to do so, we would modify the language and seek consent orders as soon as possible, so that's our position, Commissioner. COMMISSIONER: I'm sorry, I'm not sure I fully understood that, Mr Szabo. The union's concern is that although it has turned up no evidence that the award has application anywhere, it is concerned that it might have missed something? SZABO: Yes, that's it, yes, I guess we've got no members currently who are covered by the award that we can see, but there may be members who are - there maybe sort of other people - employees who are covered by this award that we haven't been able to identify yet. Given the nature of the industry, it's hard to ascertain whether it's in force anywhere or whether it applies to anybody within the State, but you are correct, Commissioner, we don't have any evidence at this stage that it applies to anybody. COMMISSIONER: When you said you want the award maintained until the next review, when you mean the next review, what are you are talking about? SZABO: Well, until the next s 19 reviews as in for it to remain in force and for us to sort of allow for a deeper look into this over a longer period of time to see if there is any coverage. COMMISSIONER: The parties have had since 14 July last year to determine whether there was any coverage, Mr Szabo. I think part of the process of the s 19 review is to identify awards which may have become obsolete which ought to be rescinded under s 20(2). I'm not minded to simply maintain the award for a further three-year period just on the off-chance that there might be pockets of employees that the USU has not been able to identify. So the most I would give you is until 4 April to conduct further enquiries and failing that it would be my intention to rescind the award. Do you wish to have that further opportunity? SZABO: Yes, Commissioner, we'd appreciate that. COMMISSIONER: Then, to reiterate, based on all of the information available to me, there is no evidence that this award covers any employees in New South Wales. The highest it has been put to me is that the USU is concerned that there may be pockets of employees of which it is unaware that are covered by this award even though there has been no employer interest identified throughout these proceedings. This all points to me towards the award having become obsolete which renders it susceptible to being rescinded pursuant to s 20(2) of the Industrial Relations Act 1996. To provide the USU with some further opportunity to make enquiries, however, I will stand the matter over for mention on 4 April 2022. I indicate to the parties at this stage that in the absence of some evidence that the award still has work to do in the State, I would be inclined to rescind it and I would not be inclined to maintain its operation in the off-chance that there might be employees covered by it. To do so, in my view, would be contrary to the s 19 process and the provisions of s 20." 1. On 4 April 2022 only Mr Szabo appeared. He stated that the USU had been unable to identify any employees to whom the Award applied. He confirmed, however, that it remained the USU's position that the Award ought not be rescinded. 2. There is no employer party expressing an interest in the Award. There is no evidence that the Award applies to any employees. I am satisfied that the Award is obsolete in that there are no longer any employees falling within its coverage. To my mind, it would be inconsistent with ss 19 and 20 of the Act that the Award be maintained in the off chance that it may have some residual coverage when the evidence suggests otherwise. 3. For these reasons I determined that it was appropriate that an order be made that the Award be rescinded. Damian Sloan Commissioner ********** 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. Decision last updated: 06 April 2022