Industrial Relations Commission of New South Wales CITATION : Poultry Industry Livestock (State) Award [2004] NSWIRComm 147 APPLICANT PARTIES : Bartter Enterprises Pty Limited RESPONDENT Australian Workers' Union, Greater New South Wales Branch FILE NUMBER: 1981 of 2004 CORAM: Sams DP Application for exemption from severance payments - s18 of the Act - ongoing alternative employment - consent of parties. CATCHWORDS : Held, best interests of employees and employer considered - consent of parties - life of order - exemption granted - order made. Industrial Relations Act 1996 s18 LEGISLATION CITED : AWARD Poultry Industry Livestock (State) Award 331 IG 93 HEARING DATES: 05/17/2004 DATE OF JUDGMENT: 05/17/2004 APPLICANT LEGAL REPRESENTATIVES: Mr P Ludeke, Agent (with instructions from Respondent) JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 17 May 2004 Matter No. IRC04/1981 POULTRY INDUSTRY LIVESTOCK (STATE) AWARD Application by Bartter Enterprises Pty Limited for exemption pursuant to section 18 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 147 1 This is an application, pursuant to s18 of the Industrial Relations Act 1996 ('the Act') filed by Bartter Enterprises Pty Limited ('the applicant'), in which it seeks an exemption from cl 29(E)(iii) of the Poultry Industry Livestock (State) Award, 331 IG 93, ('the Award'). The application named the respondent as the Australian Workers' Union, Greater New South Wales Branch ('the Union'). 2 Section 18 of the Act is expressed as follows: 18(1) [Application for exemption] The Commission may, on application, grant an exemption from the whole or any part of an award if it is satisfied that it is not contrary to the public interest and that: (a) it is in the best interests of the employees and employers concerned, or (b) the operation of the award (or part of the award) would result in significant unemployment or other serious consequences for the employees and employers concerned. 18(2) [Duration of exemption] The exemption may be granted for a period not exceeding 3 years at any one time. 18(3) [Review exemption] The Commission may, on application or on its own initiative, review any exemption, and may confirm, vary or revoke the exemption. 3 The order sought was in the following terms: Pursuant to clause 29(E)(ii) of the Poultry Industry Livestock (State) Award, Bartter Enterprises Pty Limited shall be exempted from the requirement to make severance payments of any amount to employees for whom acceptable employment is found with Rural Funds Management Limited. 4 Clause 29(E)(iii) of the Award provides as follows: Alternative Employment - Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (i) above if the employer obtains acceptable alternative employment for an employee. 5 The matter was listed for hearing on 14 April 2004. At the request of the applicant this date was changed to 17 May, at which time Mr P Ludeke (Agent) appeared for the applicant and mentioned the matter on behalf of the Australian Workers' Union. He tendered correspondence from Mr R Tripodi of the Union (Ex"1"), consenting to the application in the form of the short minutes of order which had been provided by Mr Ludeke to the Union. 6 The Commission was therefore requested to grant the consent orders, which were in the following terms: By consent of the parties, the Commission makes the following orders: 1. The employer, Bartter Enterprises Pty Limited ("Bartter") shall be exempt from paying any amount of severance pay in accordance with clause 29(E)(i) of the Poultry Industry Livestock (State) Award in relation to the employees B Cromack, S Curry, S Porter, R Johnson, T Puntoreiro, S Boye, S Hussain, A Panarello, J Perre, K Ponticello and B Taylor, on the condition that Bartter obtains acceptable alternative employment for these employees with Rural Funds Management Limited ("RFML") with full continuity of service and accumulated leave entitlements as part of the sale of the Broiler Farms known as Farms 54 to 58 inclusive formerly owned and operated by Bartter and its associated companies to RFML on or about 28 April 2004. 2. Order 1 shall take effect from 31 March 2004 and remain in force for a period of three years, or until varied or revoked. 7 Having regard for the consent of the parties, the provisions of s18 of the Act and the relevant terms of the Award, the Commission intends to grant the application and make the orders sought. 8 I order accordingly. The matter is concluded. P J Sams, AM 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.