Industrial Relations Commission of New South Wales CITATION : Notification by the Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, of a dispute with Central Darling Council re alleged breach of award [2001] NSWIRComm 160 PARTIES : Federated Municipal and Shire Council Emplyees Union of Australia Local Government and Shires Association of New South Wales FILE NUMBER: 3577 of 2000 CORAM: Sams DP Industrial dispute - award coverage of work - relevant award provision - disabilities associated with the work CATCHWORDS : Held, - work not covered by septic tank allowance - work not comprehended by existing award provisions - payment made on basis of sewer choke allowance - payment made to all existing employees - recommendation issued Industrial Relations Act (1996) LEGISLATION CITED : AWARDS: Local Government (State) Award HEARING DATES: 07/16/2001 DATE OF JUDGMENT: 07/16/2001 Mr N Martin Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division LEGAL REPRESENTATIVES: Mr B Potocki Local Government and Shires Association of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 16 July 2001 Matter No. IRC00/3577 Notification by the Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division of a dispute with Central Darling Council re alleged beach of award DECISION 1 This is a notification of a dispute, pursuant to s130 of the Industrial Relations Act 1996 ("the Act"), filed by the Federated Municipal and Shire Council Employees Union of Australia (New South Wales Division) ("the Union"), alleging that the Central Darling Council has breached the Local Government (State) Award. The alleged breach concerns the Council's refusal to pay treble time for work performed in connection with the cleaning of pumping tanks which are connected to an individual householder's sewage system. 2 The dispute was the subject of conciliation conferences before Bishop C, on 31 July and 17 October 2000 in Broken Hill and reallocated to the Commission as presently constituted by his Honour, the President, on 8 December 2000. Further conciliation conferences were conducted in Broken Hill on 1 March and 11 May; on the later occasion the Commission had the benefit of viewing a video of the work being performed by employees of the Council. 3 Despite these conferences, no agreement could be reached and the Commission was asked to issue a recommendation based upon the documentary material provided and the submissions of the parties. 4 Mr N Martin for the Union, submitted that the work was appropriately covered by Clause 9(i)(a) of the (Reviewed) Award; being treble time for all work performed in connection with the cleaning of septic tanks. The relevant award provision being: 9(i)(a) Septic Tanks - Employees shall be paid treble rates in addition to their normal rates for all time occupied on work in connection with the cleaning of septic tanks, and/or septic closets and/or chemical closets by other than mechanical means. Payments made in accordance with this subclause shall be in substitution of overtime rates and any other penalty. 5 Mr B Potocki of the Local Government and Shires Association of New South Wales, appearing for the Council, rejected the Union's claim and relied on a document marked exhibit 1, which described the Council's effluent collection system and demonstrated by a diagram at p33 of exhibit 1, the difference between a septic tank and a pumping tank (described in the diagram as a pumping station with effluent pump). It is convenient that I reproduce this diagram: He submitted that the work in dispute was covered by the general disability payment payable to outdoor staff under Clause 8: (i) A disability allowance in addition to the weekly rate of pay shall be payable to designated employees to compensate for the special disabilities associated with the nature of duties performed by outdoor staff. 6 Notwithstanding the Council's stated position, Mr Potocki submitted that the Council was prepared to pay to existing, and future employees, an amount based on the sewer choke allowance in the Award: 8. Disability Allowance (iii) Sewer Chokes - employees clearing sewer chokages shall be paid at the rate set out in Table 2 whilst so engaged (currently $5.20 per day). 7 This offer was not accepted by the Union. CONSIDERATION 8 The Commission is satisfied that it has before it sufficient information and documentation to make conclusive findings in this dispute and make recommendations accordingly. Firstly, I note that this type of effluent collection system is, either unique to Wilcannia, or very rarely used elsewhere in New South Wales. In my opinion, there is no doubt that the work performed by employees working on the household pumping stations is work not comprehended by the range of general disabilities found in Clause 8 of the Award. On the other hand, I am not convinced that the work falls into the extreme noxious category of work performed in connection with the cleaning of septic tanks. Nor am I convinced that the associated disabilities of working in septic tanks - for which treble time is paid - are analogous to those experienced by employees cleaning or servicing the pumping tank. I am fortified in this view, by the simple proposition as revealed in exhibit 1 and observed in the Union's video presentation, that the pumping tank is separate to, and distinct from the septic tank. In short, it is not a septic tank. The Union's claim must, therefore, be rejected. 9 The Commission would observe however, that the work herein described, for which no current award rate is proscribed, would, prima facie, fit somewhere between the general disabilities in Clause 8 and the septic tank allowance at Clause 9(1)(a). With this in mind, the Commission considers it appropriate to apply the sewer choke allowance to the work unless, or until, an agreement can be reached as to an appropriate rate. This is the arrangement I would strongly recommend the parties accept in respect to the present dispute. The Commission believes that this allowance should only be paid to existing employees. I recommend accordingly. PETER SAMS DEPUTY PRESIDENT 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.