Industrial Relations Commission of New South Wales CITATION: Local Government (State) Award 2004, Re [2005] NSWIRComm 233 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) New South Wales Nurses' Association Development and Environmental Professional Association PARTIES: Local Government Engineers' Association Local Government Association of New South Wales Shires Association of New South Wales FILE NUMBER(S): IRC 7177 of 2004 CORAM: Wright J President Award - Application for variation - Conditions of employment - Penalty rates - Major industrial case - Proceedings initially contested - Subsequent agreement reached - Details of agreement - Variation made. CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: HEARING DATES: 07/01/2005 EXTEMPORE JUDGMENT DATE: 07/01/2005 Mr B Kruse New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) and New South Wales Nurses' Association Mr I Robertson LEGAL REPRESENTATIVES: Development and Environmental Professional Association and the Local Government Engineers' Association Mr D Gibson Local Government Association of New South Wales and Shires Association of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Wright J, President Friday 1 July 2005 Matter No IRC 7177 of 2004 LOCAL GOVERNMENT (STATE) AWARD 2004 Application by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union for variation re hours, penalty rates and shift allowances DECISION (Extempore) [2005] NSWIRComm 233 1 This matter has a relatively long procedural history before the Commission stemming, as it does, from a notification under Practice Direction 8A (the Practice Direction relating to Major Industrial Cases) which was lodged on 24 November 2004 and the subsequent lodgement on 9 December 2004 of the application for variation of the award which is before the Commission today. 2 The proceedings, as it has transpired, have been resolved by agreement between the parties, notwithstanding that at one stage of the proceedings it was indicated that something in the order of ten hearing days before a Full Bench would be required if the matter proceeded to arbitration. 3 Reference has been made today to a number of disputes which have come before the Commission which the USU and the New South Wales Nurses' Association have indicated present an important part of the background to the application and part of the reason why the variations are necessary. It might be noted, as a matter of record, that a representative sample of the various disputes and details thereof is before the Commission in terms of schedule C to the amended application to vary the award. 4 I should also note that, in the proceedings today, the parties were represented as follows: Mr B Kruse for the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) and the New South Wales Nurses' Association; Mr I Robertson for the Development and Environmental Professional Association (DEPA) and the Local Government Engineers' Association (LGEA) and Mr D Gibson for the Local Government and Shires Associations of New South Wales. 5 Provided to the Commission as part of the evidence in the proceedings today, as well as the proposed variation to the award, are the following: the affidavit of Mr B Kruse sworn 29 June 2005, the affidavit of Mr I Robertson sworn 30 June 2005 and the affidavit of Mr D Gibson sworn 30 June 2005. It should be noted that the intention of the parties is that the affidavit of Mr Kruse be taken as fulfilling the requirements of Practice Direction 6 on behalf of the USU and the New South Wales Nurses' Association and Mr Robertson's affidavit has the same role in respect to DEPA and the LGEA. 6 It appears that the history of the matter has some importance in the way in which the application was originally brought and how it has been settled. It is fair to say, however, that the parties - as I suppose is not surprising in a situation of compromise - have a somewhat different understanding of the importance of the present variation and different emphases as to its significance. It does, however, seem reasonably clear that in 1992 when the Local Government awards were consolidated that an experiment was attempted. The experiment involved the omission from the consolidated award of specific provisions relating to penalty and shift rates and the replacement of that mechanism with certain facilitative provisions to enable such mattes to be dealt with almost totally at a local consultative level. 7 The USU and the New South Wales Nurses' Association have indicated their views as to what they saw as an experiment which did not turn out to be successful and the consequent difficulties which they submit led to the disputes to which reference has already been made. It is appropriate to note that in relation to the disputes, of which a sample has, as noted, been the subject of a schedule filed and available on the Commission file, the USU and the New South Wales Nurses' Association have specifically pointed out that the variation to the award sought does not in any way derogate from the rights of the respective unions and their members to seek certain retrospective payments in those dispute proceedings; in other words, their rights as to the appropriate resolution of those disputes is reserved. 8 I should at this point make some specific acknowledgements, first, to the assistance provided by the advocates today in relation to the detail of what the Commission is being asked to do. Secondly, I should place on record the acknowledgement by the parties of the assistance provided by Deputy President Sams in the resolution of the matter when the various proceedings were allocated to his Honour for conciliation in February of this year. It is plain that his Honour's role has assisted the parties to reach the agreement they have reached today. 9 It is also to be noted that although what is occurring today by the proposed variation to the award does appear to be a move away from certain areas in the consultative processes included in the consolidated award in 1992, the parties have assured the Commission of their continuing commitment to enterprise bargaining and their continued commitment to the continuation of the consultative processes which remain in the award and the vital role of such matters in regulation of industrial relations and workplace issues in this important industry, which employs approximately 45,000 people covered by the award the subject of the proceedings today. 10 It is also appropriate to observe that DEPA and the LGEA have indicated that they have agreed to the variation with a degree of hesitancy and important to their agreement is the assurance provided by the employer organisations, the Local Government and Shires Associations of New South Wales, by letter dated 29 June 2005 (exhibit 7 in the proceedings) which makes clear that the effect of the variation to Clause 27C of the award is that "councils must refer to the consultative committee all changes to variable working hours arrangements for new or vacant positions." 11 It is also relevant to note that DEPA and LGEA indicated that some of the concerns of the other unions did not apply to their members and they were concerned to ensure that the variation today did not remove certain protections for DEPA and LGEA members in respect of current working arrangements concerning nine-day fortnights and other variable working systems. 12 Briefly, the variations to the award to be made include the following: there is a new Clause 16 "Hours of Work" which, as Mr Gibson pointed out, is a provision which does not increase or decrease hours of work in any area of the award. Clause 16, however, does make clear the appropriate spreads of hours of work in the various areas of employment under the award and the rates of pay or penalty rates which are applicable in those various sectors where work is performed outside the span of hours or in similar situations. 13 One specific matter which was clarified during the submissions of Mr Gibson was that the reference in Clause 16A(iv) to "Administration" was intended not to refer to administrative or clerical work of every conceivable kind, but rather was intended to refer to what the Commission understands to be the usual kind of reference to this type of work in Local Government and similar areas, that is, to general administration, including information technology, customer service and other clerical and administrative duties. The corollary of this clarification is that it is the understanding of the parties that clerical duties which are carried on in association with other specific areas of work such as library work, work in connection with entertainment venues, leisure centres, community services and the like, will continue to have the spreads of hours applicable to those particular areas of work. 14 Another important part of the agreement between the parties is to be found in Clause 16C(v). This provision which makes clear that, in situations where an employee has requested that he or she work ordinary hours outside the relevant span of hours in lieu of the ordinary span of hours, the relevant employing council shall not be required to pay penalty rates for the time worked. There are, however, important safeguards included in the clause to ensure that the provision does not operate in a way which would be considered to be oppressive. 15 The other variations to the award, apart from Clause 27C, about which specific reference has already been made, appear to be consequential amendments to the award and designed to ameliorate the concerns earlier referred to, of the USU and New South Wales Nurses' Association. 16 There are two other matters of important detail to which reference should be made. One was the submission by Mr Gibson on behalf of the relevant employer organisations that one of the principles in making the variation was that there was to be no double counting of benefits. The other matter was the recognition by the unions that, because of the nature of the variations made, there would be a need for a settling in or transition period. 17 The second matter has had two consequences. The first, that in evidence before the Commission today, as an annexure to Mr Kruse's affidavit (exhibit 3) is a document entitled "General Principles", which was a crucial document in determining the form of the agreement that has been reached. It seems to the Commission that this is a useful document which should assist the parties to more readily understand and apply the terms of the agreement and the consequent award variation which has its own complexities. It is also relevant to note that document is available to employers throughout the industry as it has been posted on the website of the Local Government and Shires Associations. 18 The second consequence is that it is agreed between the parties that, because of the settling in and transitional period referred to, it is appropriate that the variation made today not operate from today, but rather from three months hence. 19 The Commission accepts the submissions of the parties that the variation to be made by consent today complies with the requirements of the Industrial Relations Act 1996 and is also consistent with the Wage Fixing Principles. 20 The Commission, therefore, proposes to make a variation to the Local Government (State) Award 2004 in terms of schedule A to exhibit 2 subject to this alteration: Clause 7 of the variation will, instead of the verbiage which is to be found in the exhibit, read as follows: "This variation shall be effective from the first pay period commencing on or after 1 October 2005." 21 The Commission accordingly makes a variation to the said award which shall take effect from the first pay period commencing on or after 1 October 2005. 22 Finally, the Commission directs the USU, which has had carriage of this matter, to file within 14 days the revised version of the variation made today in both hard copy and electronic form. ______________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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