Industrial Relations Commission of New South Wales CITATION : Tooheys Limited (Auburn Brewery) Enterprise Award 2000Application by Tooheys Pty Limited for a new award [2001] NSWIRComm 164 Australian Liquor, Hospitality and Miscellaneous Workers Union (New South Wales Branch) PARTIES : Construction, Forestry, Mining and Energy Union (New South Wales Branch) Tooheys Pty Limited FILE NUMBER: 3870 of 2001 CORAM: Sams DP CATCHWORDS : Application for a new award - award improvements are reasonable and have industrial merit - award conforms with State Wage Case Principles and meets the requirements of the Act - wage increases and other benefits - retrospective opereration approved - award made - previous award rescinded LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : State Wage Case 2001 (unreported, Wright P, Walton VP, Hungerford J, Sams DP, Boland J and McKenna C, IRC3025 of 2001, 31 May 2001) Principles for Review of Awards - State Decision 1998 (85 IR 38) HEARING DATES: 07/10/2001 DATE OF JUDGMENT: 07/10/2001 APPLICANT Australian Liquor, Hospitality and Miscellaneous Workers Union of Australia (New South Wales Branch) LEGAL REPRESENTATIVES: RESPONDENT Tooheys Pty Limited JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP 10 July 2001 Matter No. IRC01/3870 TOOHEYS LIMITED (AUBURN BREWERY) ENTERPRISE AWARD 2000. Application by Tooheys Pty Limited for a new award. D E C I S I O N 1 This is an application, pursuant to ss11 and 17 of the Industrial Relations Act, 1996 ("the Act"), by Tooheys Pty Limited, for a new award to replace the Tooheys Limited (Auburn Brewery) Enterprise Award 1997. The application was filed on 8 June 2001 and listed for hearing on 15 June 2001. 2 At the hearing, Ms L Dean (Solicitor) appeared for Tooheys Pty Limited and Ms T Moriarty represented the Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch ("the Union"). 3 Ms Dean referred the Commission to the new award, entitled Tooheys Limited (Auburn Brewery) Enterprise Award 2000, attached to the application (Exhibit 1). With leave, Ms Dean made a number of amendments to the award. The Commission also required changes to be made to exhibit 1 to satisfy the requirements of the Act, such as to include the standard anti-discrimination clause. Ms Dean submitted that the new award has the consent of the parties and did not otherwise offend the requirements of the Act, for the making of a new award. She also submitted that the new award complies with section 19 of the Act and the Commission's Principles for Review of Awards - State Decision 1998 (85 IR 38). 4 In respect to the awards retrospective operation, Ms Dean submitted that pursuant to section 15(4)(b) of the Act, the award could operate retrospectively where the application has the consent of the parties and sets conditions of employment for employees of a single employer. 5 Ms Moriarty advised that the Union had only recently received the award document and she requested a period of three weeks to review the document. 6 Having heard the submissions of the parties, I conditionally approved the Award, subject to the filing of a replacement exhibit 1, reflecting the changes made to the award during the proceedings. I also granted liberty to either party to have the matter re-listed within 21 days, should the Union's consent not be forthcoming. 7 The Commission received the revised exhibit 1 on 9 July 2001. 8 The Award provides for wage increases of 5.6 percent from 1 September 2000 and 4.5 percent from 1 September 2001. It also provides for new arrangements for seven (7) day rosters arising from the settlement of a dispute which was before the Commission as presently constituted in matter 3705 of 2000. A new provision entitles 12 days paid training leave for union delegates covered by the award. 9 The proposed award reflects a tradition of negotiations between the parties resulting in a review of their existing industrial arrangements. The changes sought in the new award are reasonable, and, in my opinion, are of considerable industrial merit. 10 Having reviewed replacement exhibit 1, I confirm my approval of the award. I am satisfied that it's terms and conditions do not offend the 2001 State Wage Case Principles (unreported, Wright P, Walton VP, Hungerford J, Sams DP, Boland J and McKenna C, IRC3025 of 2001) and otherwise meets all the requirements of the Act. I also note that more than 21 days has passed since the award's conditional approval on 15 June and that no party has sought a re-listing of the matter. Accordingly, the Commission accepts that the award has the consent of the parties. 11 I am further satisfied that the award meets the specific requirements of s19 of the Act and the Commission's Principles for Review of Awards - State Case 1998 (85 IR 38). Therefore, this award need not be reviewed for a further 3 years. 12 I note that the new award rescinds and replaces the Tooheys Limited (Auburn Brewery) Enterprise Award 1997, as varied (312 IG 552). An order of rescission is also made, effective on and from 15 June 2001. 13 Accordingly, the Tooheys Limited (Auburn Brewery) Enterprise Award 2000 is approved and pursuant to s15(4)(b) it is appropriate to give it retrospective operation. It shall take effect from 1 September 2000 and shall remain in force until 31 August 2002. These proceedings are formally concluded. 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.