Industrial Relations Commission of New South Wales CITATION : Bootmakers & Heel Bar Operatives &c., (State) Award and other Awards [2003] NSWIRComm 92 Shop Distributive and Allied Employees' Association, New South Wales Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales Australian Business Industrial Baking Industry Association (New South Wales Employers) Australian Retailers Association New South Wales PARTIES : Employers First Motor Traders Association of New South Wales Restaurant and Catering Industry Association of New South Wales Australian Industry Group Catholic Commission for Employment Relations Furnishing Industry Association of Australia New South Wales Pharmacy Guild FILE NUMBER: 1431,1432,1433,1434,1435,1436,1437,1438,1439,1440,1441,1442,1443,1444,1445,1447,1448,1449,1450,1451,1452,1453,1455,1456,1457 of 2003 CORAM: Sams DP s17 application to vary awards - expense related allowances - union fee deduction clause - test case decision - State Wage Case Principles - opportunity to consult members. CATCHWORDS : Held, variation not in conflict with State Wage Case Principles or the Act - industrial merit - 7 days to lodge objection - no objections filed - variation approved - variation consistent with test case decision - amended application approved. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Re Club Employees State Award and other Awards [2002] NSWIRComm 362 State Wage Case (2002) 114 IR 81 HEARING DATES: 03/21/2003 DATE OF JUDGMENT: 03/21/2003 Mr B Smith for the Shop Distributive and Allied Employees' Association, New South Wales. Mr D Bliss for the Shop Assistants and Warehouse Employees' Union, Newcastle and Northern New South Wales Ms K Barrat for Employers First Ms L Brooks for Australian Business Industrial Mr M Meade for the Australian Industry Group Mr A Duc for the Restaurant and Catering Industry Association of New South Wales LEGAL REPRESENTATIVES: Mr M Hjelmhof for the Baking Industry Association (New South Wales Employers) Mr T Vargo for the Motor Traders Association of New South Wales Mr A Katic for the Catholic Commisssion for Employment Relations Mr R Nassif for the Furnishing Industry Association of Australia Ms J Swift for Australian Retailers Association New South Wales Mr N Keats for the New South Wales Pharmacy Guild JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 1 April 2003 Matter No. IRC03/1431 and other matters Bootmakers & Heel Bar Operatives &c., (State) Award and other awards Applications by the Shop, Distributive and Allied Employees' Association, New South Wales and another for variation re expense related allowances and union fee deduction arrangements. DECISION [2003] NSWIRComm 92 1 These are applications, pursuant to s17 of the Industrial Relations Act 1996 (the "Act") by the Shop, Distributive and Allied Employees' Association, New South Wales and the Shop Assistants and Warehouse Employees' Federation, Newcastle and Northern New South Wales ("the Unions") for the variation of thirteen Awards in respect to expense related allowances and union fee deduction arrangements. (The awards are listed in a schedule to this decision). 2 At a hearing of the matter on 21 March 2003, Mr B Smith and Mr D Bliss appeared for the Unions. 3 Mr Smith submitted that the applications deal firstly, with an increase in the expense related allowances in line with the Consumer Price Index up to and including the December 2002 quarter, and secondly, to give effect to the decision of the Full Bench of the Commission in Re Club Employees State Award and other Awards [2002] NSWIRComm 362. Mr Smith said the proposed variations meet all the requirements of the State Wage Case (2002) 114 IR 81 and the relevant provisions of the Act. He tendered an amended schedule in all of the matters and each was marked Exhibit "1" in the respective proceedings. Mr Smith provided an affidavit from each of the two Union Secretaries, as required by the Full Bench decision, stating that the variation was not in conflict with the Union's rules. 4 All employer parties consented to the application in respect to expense related allowances. However, a number of employer organisations, including Employers First, the Australian Retailers Association and Australian Business Industrial requested an opportunity to consult with their members as to any difficulties that might exist with the union fee deduction clause. 5 Mr Smith resisted this approach and put that the Full Bench's decision was a test case decision and that awards were to be varied upon application. He referred to para 125 of the decision: The provision will be inserted into awards, other than those varied in these proceedings, upon application. The application should not be granted unless the Commission is satisfied that the proposed provision is consistent with the registered rules of the relevant union or unions and will not be in a form, which will render a union member unfinancial under the rules. 6 The Commission would also refer to para 9 of the decision which describes the nature of the proceedings before the Full Bench: All of the parties approached the proceedings on the basis that it dealt with the issue of award provisions providing for the deduction of union fees as a test case and presented evidence and submissions accordingly. This decision deals with the issue in the same way, as did the parties. 7 In view of the Full Bench decision, I queried why it was necessary for the parties to seek further instructions from their members. Reluctantly, I agreed to allow a period of seven days as requested by the employer organisations. 8 I am satisfied that the proposed variations do not conflict with the State Wage Case Principles and in all other respects are consistent with the relevant provisions of the Act. I am further satisfied that the proposed variations have industrial merit and are consistent with the test case decision. 9 At the conclusion of each of the hearings the Commission varied the awards pursuant to s17 of the Act, to give effect to the increase in the allowances referred to in Ex "1". The Commission proposed a period of seven days during which it was to be advised as to any difficulties from the employers' perspective that would require the matters to be relisted. I did not intend to relist any matter unless otherwise advised, and if no advice was received within seven days, the awards would be varied in accordance with the union fee deduction provision in Ex "1" and such variation would take effect on and from 21 March 2003. 10 The Commission subsequently received advice from the Australian Retailers Association objecting to the proposed variation. This objection was withdrawn on 31 March 2003. No other objections were received and accordingly the awards will be varied as indicated above. 11 The proceedings are concluded. Peter Sams Deputy President Schedule A 03/1431 - Bootmakers & Heel Bar Operatives &c., (State) Award 03/1432 - Bootmakers & Heel Bar Operatives &c., (State) Award 03/1433 - Shop Employees (State) Award 03/1434 - Shop Employees (State) Award 03/1435 - Restaurant &C., Employees' Retail Shops (State) Award 03/1436 - Restaurant &C., Employees' Retail Shops (State) Award 03/1437 - Van Sales Employees' (State) Award 03/1438 - Van Sales Employees' (State) Award 03/1439 - Mannequins & Models (State) Award 03/1440 - Mannequins & Models (State) Award 03/1441 - Community Pharmacy (State) Award 03/1442 - Community Pharmacy (State) Award 03/1443 - Vehicle Industry - Repair Services & Retail (State) Award 03/1444 - Vehicle Industry - Repair Services & Retail (State) Award 03/1445 - Motor Vehicle Salesperson (State) Award 03/1457 - Motor Vehicle Salesperson (State) Award 03/1447 - Pharmacy Assistants (State) Award 03/1448 - Pharmacy Assistants (State) Award 03/1449 - Retail Services Employees (State) Award 03/1450 - Retail Services Employees (State) Award 03/1451 - Tennis Strings and Sutures Industry (State) Award 03/1452 - Tennis Strings and Sutures Industry (State) Award 03/1453 - Wholesale Fruit and Vegetable (State) Award 03/1455 - University Unions (State) Award 03/1456 - University Unions (State) Award 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.