Industrial Relations Commission of New South Wales CITATION: Macquarie Generation Employees (State) Award 2002 [2005] NSWIRComm 197 Macquarie Generation PARTIES: Unions NSW; Construction, Forestry, Mining and Energy Union (NSW Branch); The Electrical Trades Union of Australia, NSW Branch; Public Service Association of New South Wales; Australian Institute of Marine and Power Engineers; Australian Manufacturing Workers' Union; New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union; The Association of Professional Engineers, Scientists and Managers Australia; The Australian Workers' Union FILE NUMBER(S): IRC 2722 of 2005 CORAM: Harrison DP CATCHWORDS: Application for variation - deletion of sick leave arrangements for employees retired due to ill health to be preserved by an enterprise agreement - Award varied by consent LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 06/03/2005 DATE OF JUDGMENT: 06/08/2005 APPLICANT Mr K Petersen Macquarie Generation LEGAL REPRESENTATIVES: RESPONDENT Mr P McPherson Unions NSW JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 8 June 2005 Matter No IRC 2722 of 2005 MACQUARIE GENERATION EMPLOYEES (STATE) AWARD 2002 Application by Macquarie Generation for variation re deletion of sub-clauses 19.10 and 19.11 DECISION [2005] NSWIRComm 197 1 This is an application by Macquarie Generation for variation of the Macquarie Generation Employees (State) Award 2002 ("the award") 339 IG 13 by deletion of sub-clauses 19.10 and 19.11 of clause 19, Sick Leave and Accident Pay of the award. 2 The application was subject to hearing on 3 June 2005. Mr K Petersen appeared on behalf of Macquarie Generation with Mr C Peebles. Mr P McPherson appeared on behalf of Unions NSW and affiliated unions. 3 This application by consent of the parties seeks to vary the award by removal of provisions 19.10 and 19.11 which require that employees may be retired due to ill health only after exhaustion of all sick leave credits or be paid their sick leave entitlement; and that where Macquarie Generation decides to retire an employee because of ill health, no additional sick leave accrues after the date of that decision. 4 The parties expressed a view that advice had been received that the provision may be interpreted to offend s 27 of the Industrial Relations Act 1996 ("the Act"). Such a view is problematic given the pre-requisite of illness. 5 The parties have agreed to replace the provisions of the abovementioned sub-clauses in the form of an enterprise agreement in order that the benefit to employees retiring due to ill health is maintained without any attendant controversy as to whether the award provisions offend s 27 of the Act 6 I am satisfied that the variation sought by consent of the parties meets the requirements of the legislation and the Award is accordingly varied in the terms of the application with effect from 3 June 2005. oo0oo 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.