Industrial Relations Commission of New South Wales CITATION: Motels, Accomodation & Resorts (State) Award [2005] NSWIRComm 248 EMPLOYERS FIRST PARTIES: LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, NEW SOUTH WALES BRANCH FILE NUMBER(S): IRC 5334 of 2004 CORAM: Walton J Acting President; Grayson DP; Tabbaa C CATCHWORDS: Employer application to vary state award - Counterpart federal award - Operation of counterpart award principles - Importation into state award of some but not other federal award clauses - Undisputed history of counterpart federal and state awards - Agreed desirability of continuance of counterpart relationship - History of counterpart award principles - Continuing application thereof - Award making powers and requirements of the Industrial Relations Act supported and complimented by counterpart award principles - Absence of requirement for strict counterpart status - Divergence of state and federal schemes a basis for departure from counterpart award status - Primary obedience to requirements of state legislation - Sound commonsense and policy basis for counterpart award principles - Desirable in interests of comity that state award reflects provisions of federal award where industry is largely regulated by the latter - Union opposition to application insufficient to disturb counterpart status - Application granted but in accordance with full counterpart status - State award varied. Industrial Relations Act 1996 LEGISLATION CITED: Workplace Relations Act 1996 Agricultural Employees (State) and Other Awards, Re [1967] AR (NSW) 56 Compositors, &c (Country) Award, Re [1960] 59 AR (NSW) 61 Engineers (State) Award, Re [1964] 64 AR (NSW) 54 Musicians (State) Award, Re [1956] 56 AR (NSW) 585 Pastoral Industry (State) Award, Re (2000) 104 IR 168 CASES CITED: Production Planners, Technical Officers &c (State) Award, Re [1967] 67 AR (NSW) 52 Sawmills &c (State) Award (No 1), Re (unreported, Hungerford J, 27 October 1989) Sawmills &c (State) Award (No 2), Re (unreported, Hungerford J, 1 June 1990) HEARING DATES: 06/06/2005 DATE OF JUDGMENT: 08/12/2005 EMPLOYERS FIRST Mr T McDonald LEGAL REPRESENTATIVES: LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, NEW SOUTH WALES BRANCH Mr N Quinn JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Walton J Acting President Grayson DP Tabbaa C 12 August 2005 Matter No IRC 5334 of 2004 The Motels, Accommodation & Resorts (State) Award Application by Employers First for award variation DECISION OF THE COMMISSION [2005] NSWIRComm 248 1 This matter concerns an application by Employers First to vary the Motels, Accommodation & Resorts (State) Award under s17 of the Industrial Relations Act 1996. 2 The application in its amended form (as filed on 17 January 2005) proceeds upon the following grounds and reasons: - 1. The Award is counterpart to the Motels, Accommodation & Resorts Award 1998. 2. On 3 September 2004, Employers First filed an application to vary the Award to maintain that counterpart relationship. 3. This application sought to vary the Award to include clarification to part-time employees entitlements to Public Holidays and the inclusion of an Overnight Stay Allowance. 4. The Union party to the award noted that the application by Employers First did not seek to vary the Award to include some other variations which had occurred to the Federal Award. 5. In light of the Union's concerns, Employers First has reviewed the variations to the Federal Award, and seeks to amend it's application to incorporate other changes which have occurred to the Federal Award, such as increases to the Supported Wage and Reasonable Overtime. 6. Upon such other grounds and for such other reasons as the Commission finds appropriate. 3 The original application filed on 3 September 2004 contained proposed amendments to two clauses only and was resisted by the Australian Liquor, Hospitality and Miscellaneous Workers Union (ALHMWU) it would seem, on the basis broadly stated that it sought to selectively import into the state counterpart award only certain of the clauses contained in the Motels, Accommodation & Resorts Award 1998, an award of the Australian Industrial Relations Commission (the federal award). 4 The matter progressed by way of discussion between the parties under the direction of the President to the point where the issues dividing them in the context of the amended application presently before the Full Bench have now been crystallised. 5 In short, Employers First have expanded the initial application significantly in the light of the discussions inter partes such that it is now proposed to import seven amended clauses from the federal award into the State counterpart award rather than the two amended clauses originally proposed. 6 For its part, the ALHMWU consents to five of the proposed changes; resists the remaining two proposed changes and contends that a further clause ought be imported from the federal award into the State award if the latter is properly to be regarded as maintaining its counterpart award standing. It should be noted in paraphrasing the ALHMWU's position for the purpose of these reasons, that the union does not concede that, if the Employers First application were to be further amended to contain such an additional clause, it would be a meritorious application in respect of the resisted clauses. Rather, the ALHMWU points to the unwillingness of Employers First to include the additional clause in its application as a matter which the Commission would take into account in the context of the counterpart award principles, in determining whether the application should be granted insofar as the resisted clauses are concerned. 7 In those circumstances, and given the absence of any contest as to the counterpart history of the State award or the desirability of its continuance as a counterpart award, we propose to limit our consideration to the three clauses concerned namely, the two resisted clauses and the additional clause to which the ALHMWU refers and whether, consistent with counterpart award principles (and any other issues of merit that may be relevantly raised), the State award should be varied to include any or all of them. 8 In view of some of the submissions advanced by the parties, we would wish to emphasise at the outset of our considerations and as clearly as we might, that the Full Bench decision in Re Pastoral Industry (State) Award (2000) 104 IR 168 is authority for the proposition that the counterpart award principles which have been developed over many years by the Commission and it's predecessors (see for example, Re Musicians (State) Award [1956] 56 AR (NSW) 585; Re Compositors, &c (Country) Award [1960] 59 AR (NSW) 61; Re Engineers (State) Award [1964] 64 AR (NSW) 54; Re Production Planners, Technical Officers &c (State) Award [1967] 67 AR (NSW) 52 at 54; Re Agricultural Employees (State) and Other Awards [1967] AR (NSW) 56 at 87; Re Sawmills etc (State) Award (No 1) (unreported, Hungerford J, 27 October 1989) and Re Sawmills etc (State) Award (No 2) (unreported, Hungerford J, 1 June 1990)), firstly, continue to have application (see also Principle 5 of the State Wage Case Principles State Wage Case 2005 [2005] NSWIRComm 213 at p.30), and secondly, support and compliment the Commission's award making powers and the requirements of the Act although they do not require and have never required that strict counterpart status must be maintained as between State and federal awards, irrespective of the terms of the Industrial Relations Act 1996 or standards set by this Commission. Thus in the Pastoral Industry case the Commission did not give effect to changes in the relevant Federal award where those changes had arisen from provisions of the Workplace Relations Act 1996 which diverged from the legislative scheme under the New South Wales Act (and indeed were incompatible with them) and where the parties disagreed as to the counterpart nature of the awards. 9 The Full Bench in Pastoral Industry observed at [81]: It is relevant to observe that the principles which the Commission has long applied to counterpart awards have no statutory basis, other than as part of the way in which the Commission has traditionally exercised its award making powers as a matter of discretion. The exercise of such discretions do not permit the requirements of the Act to be ignored, nor do they permit the Commission simply to approach their application as if the award making provisions of the Act and the principles which the Commission applies in exercising these powers were identical to those of the WR Act. Plainly they are not and indeed, ABI emphasised in its submissions that it was not seeking simply to reflect the WR Act award simplification requirements through this application. 10 In this matter, the parties were agreed as to the counterpart nature of the award and sought its continuance. In this respect, in Pastoral Industry, the Full Bench made the following observation (at [87]): The concepts underlying the counterpart award principles on which the employer parties to the award rely have a sound commonsense and policy basis. Where an industry in this State is largely regulated by a federal award, it is desirable that the State award should reflect such provision in the interests of comity, not for the two systems of industrial relations, but rather for those to whom the awards apply - employers and employees both. We observe, in that regard, that it is generally accepted for the purpose of these proceedings that the federal award covers the larger part of the field. 11 Turning then to the three clauses in question we note that the two resisted clauses deal first, with arrangements for payment of an allowance and if appropriate, penalty rates for overnight stays and work performed in the course of overnight stays and secondly, with entitlements of regular part-time employees to public holidays without loss of pay if the public holidays fall on days the employees would normally work. Both variations seek to clarify the operation of existing award provisions. The third clause, namely, the so-called casual conversion clause, confers upon certain casual employees a right to elect "to have his or her contract of employment converted to full-time or regular part-time employment." 12 As to the two resisted clauses, the ALHMWU contends that their inclusion in the State award would result in a detriment to employees covered by the State award, although we do not, on the evidence presented, and having regard to the award conditions in their totality, consider that such a conclusion necessarily follows. As to the casual conversion clause, we note the reluctance of Employers First to include such a clause in the amended application here being considered, on the basis among others that it is a matter presently before a Full Bench of the Commission in s51 State case proceedings (see IRC 03/3340 Secure Employment Test Case). 13 We have carefully considered the competing contentions of the parties including the numerous authorities to which we have been taken (both in the written submissions and in the affidavit material and in the course of argument generally). We are of the view that the counterpart award principles, properly applied in the context of the Commission's award making powers (and in the light of the actual variations sought), warrant the granting of the Employers First application including the two resisted clauses. We are unable to discern from the material before us, any or any sufficient reason why the counterpart nature of the State award should be disturbed. On the contrary, it may be observed as Employers First submitted that the very basis upon which the State award is made is expressed at clause 33 of that award to be "in relation to the award of the Australian Industrial Relations Commission known as the Motels, Accommodation & Resorts Award 1998." 14 Having so found, and for the same reasons, we are of the view that proper adherence to the counterpart award principles would require that the casual conversion clause presently found at clause 13.2.4 of the federal award should be imported by way of variation under s17 of the Act into the State award. The question of the interaction between that clause and any decision of the Full Bench to make a State decision (if any) should be then determined in the light of that decision, and in particular any observations concerning counterpart awards. 15 We consider then that the Employers First application, as amended, should be granted and that the state award should be varied accordingly save that the varied award should also contain the casual conversion clause to which earlier reference is made (and a leave reserved clause permitting any party to revisit that question in the light of any State decision) and we so order. 16 Employers First is directed to file and serve a draft award within 21 days reflecting the Commission's order. The proceedings will thereafter be concluded administratively without the need for further attendance by the parties, subject to any objection filed by the ALHMWU within 7 days of the service of the draft award by Employers First. 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