Industrial Relations Commission of New South Wales CITATION : Building & Construction Industry (State) Award [2001] NSWIRComm 61 APPLICANT: Employers First RESPONDENTS: PARTIES : Australian Business Industrial Australian Industry Group New South Wales Branch The Master Builders' Association of New South Wales Newcastle Master Builders' Association Construction Forestry Mining and Energy Union New South Wales Branch FILE NUMBER: IRC 4621 4847 4849 4973 5174 of 1999 and IRC 5769 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Award - Notices of award review - Consent award - Replacement and consolidation of awards previously applying in building and construction industry - Comity of approach with awards of Australian Industrial Relations Commission - Award provisions conforming with the Act and decisions and principles of this Commission - Application has industrial merit - Application meets statutory requirements and wage fixing principles - s19 reviews redundant - New award meets s19 requirements in certain respects - New award made - Draft award to be filed incorporating amendments LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 11/09/2000; 02/14/2001; 03/15/2001 EXTEMPORE JUDGMENT DATE : 03/15/2001 APPLICANT: Mr P Ryan Employers First RESPONDENTS: Mr Kerr LEGAL REPRESENTATIVES: Newcastle Master Builders Association Mr Fletcher Australian Business Industrial Mr Marshall Construction Forestry Mining and Energy Union JUDGMENT: CORAM: WALTON J, Vice-President THURSDAY 15 MARCH 2001 MATTER No IRC5769 OF 2000 BUILDING AND CONSTRUCTION INDUSTRY (STATE) AWARD. Application By Employers' Federation of New South Wales for Variation Re Application and Operation of Award and other issues. MATTER No IRC4621 OF 1999 BUILDING TRADESMEN (STATE) CONSTRUCTION - 1996 WAGES ADJUSTMENT AWARD. Notice of Award Review Pursuant to s19 of the Industrial Relations Act 1996. MATTER No IRC 4847 OF 1999 BUILDING AND CONSTRUCTION INDUSTRY LABOURERS ON SITE - 1996 WAGES ADJUSTMENT (STATE) AWARD Notice of Award Review pursuant to section 19 of the Industrial Relations Act 1996. MATTER No IRC 4849 OF 1999 BUILDING AND CONSTRUCTION INDUSTRY LABOURERS ON SITE - 1992 EXPENSE RELATED ALLOWANCES (STATE) AWARD Notice of Award Review pursuant to section 19 of the Industrial Relations Act 1996 MATTER No IRC4973 OF 1999 BUILDING AND CONSTRUCTIONS INDUSTRY LABOURERS ON SITE (STATE) AWARD Notice of Award Review pursuant to section 19 of the Industrial Relations Act 1996. DECISION (extempore) HIS HONOUR: These matters concern awards applying to the building and construction industry in this State. The Commission has before it a number of notices for the review of awards in that industry pursuant to section 19 of the Act and an application by Employers First pursuant to section 17 of the Act. The parties have indicated to the Commission today that they consent to the application by Employers First as amended, in terms of the draft award proposed by Employers First in its communication to the Commission of 7 March 2001 (which document shall be marked exhibit A). During the course of submissions today the parties addressed the considerations arising in relation to the making of that award. They also addressed two particular matters, firstly, the issue arising as a result of correspondence from Mr Marshall on behalf of the CFMEU dated 12 March 2001 and various particular matters raised by the Commission as to the form of the proposed award. As to the first of those considerations, the parties did not reach an agreement as to the definition of roof 3 labourer (which was raised by the CFMEU in its correspondence) but did concur that that matter would arise under the leave reserved provisions of the proposed award contained in clause 7(b). In short, there is no present agreement as to the variation proposed by the CFMEU but acknowledgment that matter may be dealt with in the leave reserved provision of the award. The second issue, or group of issues, concerns matters raised by the Commission. In many respects the issues raised by the Commission have been satisfied by Mr Ryan's submissions today. However, there were some particular matters which were identified which would require variation to the proposed form of consent award. Those adjustments (which are also matters agreed to by the parties) would involve a variation to the proposed award in exhibit A by the moving clause 5.3; by the insertion of an operative date, namely 15 March 2001 in clause 5.5; by the adjustment of the clause numbering in the award (so as to have the effect of removing vacant clauses from the award, for example, clauses 8 and 9), and re-numbering other clauses accordingly; by amending clause 18.1.2(g) so as to give conformity to the absorption clause arising from the State Wage Case 2000 and by making various amendments in relation to the appendicies of the award (see pages 84 to 100 respectively) so as to firstly ensure that an appropriate reference is contained within the text of the award to the appendices and, secondly, adjust the form of the appendices for clarity of expression and understanding. This decision proceeds then upon the basis of there being before the Commission a consent application to make a new award in terms of exhibit A in the proceedings as amended in this fashion. That application has two significant aspects. Firstly, the application rescinds and replaces a number of awards of this Commission which are listed in clause 5.1 of the proposed award. In so doing, the application has the desirable effect of eliminating splinter or special purpose awards and consolidating within one award the entirety of the relevant conditions within this industry. It has a further incidental effect of removing these awards, that is the awards referred to in 5.1, from consideration under section 19 of the Act. Secondly, the award gives effect to its stated intention as expressed in clause 7(a) of the proposed award, that is, a proposed award seeks to maintain and, I should add, enhance comity between the award applying to this industry in this State and the award applying in the Federal jurisdiction now known as the National Building and Construction Industry Award 2000. The proposed award incorporates many of the latest provisions of that Federal award and does so in a manner which gives, within appropriate limits, the highest degree of conformity available between the Federal award and the proposed State award. However, it has been made clear in submissions today that there are variations between the Federal award and the proposed State award which, for the most part, correspond to the effects of statutory provisions in this State or the need to give effect to test case decisions of this Commission. Broadly speaking, the application seeks to amend the existing framework of awards regulating the building and construction industry in this State by drawing together the disparate provisions found within the various awards (described within clause 5.1 of the proposed award) into a single award which, by its terms, gives conformity, so far as possible, with the employment arrangements found in the award applying in the Federal arena. At the same time, the approach of the parties recognises and applies those arrangements which are appropriate, having regard to the existing State award, the Act and decisions of this Commission. Having regard to these considerations the application is entirely appropriate from the viewpoint of industrial merit and also conforms with the principles established by this Commission in relation to the making of awards where it is appropriate to have a comity of approach between the awards of the Australian Industrial Relations Commission and awards made by this Commission. In any event, the award is one which is appropriate to be made as a matter of principle, having regard to the fact that there is consent of all parties. In those circumstances, I make a new award entitled the Building and Construction Industry (State) Award in terms of exhibit A in the proceedings, as amended in the fashion described in this decision. That award shall operate from the beginning of the first pay period on or after 15 March 2001 and shall remain in force for a period of twenty-four months. The award so made rescinds and replaces the awards specified in clause 5.1 of the award. I order the rescission of the awards so described effective from 15 March 2001. It remains for me to make some observations as to the operation of section 19 of the Act in this context. It follows from this decision that the award review proceedings which are presently before the Commission and which concern the awards referred to in clause 5.1 of the award lapse as the awards, the subject of review, have now been rescinded. As to the award made by the Commission in terms of exhibit A, in my view, the award satisfies the statutory requirements for the review of awards with respect to the following elements of section 19(3), namely, those matters referred to in subsections (3)(a), (3)(b) and (3)(d) and, subject to the requirements of subsections 3(e), (3)(f), the provisions of subsection (3)(g). The award so made would therefore require consideration in due course under section 19(3)(e) and (f) of the Act (and having regard to relevant principles). Those matters will be attended to in due course upon the issuing of a notice of award review. With respect to the award made, the parties should provide to the Commission within seven days a document which represents the amendments to exhibit A as described in this decision, which amendments, when forwarded to the Commission, should indicate the consent of all parties to that final form of the proposed award. In other words, the parties should arrange to prepare a replacement to exhibit A which represents the consent of all parties and which reflects this decision. 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.