Industrial Relations Commission of New South Wales CITATION : Private Pathology Laboratories (State) Award and Clerical and Administrative Employees (State) Award [2002] NSWIRComm 268 APPLICANT: Queensland Medical Laboratory (Partnership) RESPONDENTS: Federated Clerks Union of Australia, New South Wales Branch PARTIES : Australian Liquor, Hospitality and Miscellaneous Workers Union New South Wales Branch Douglass Hanly Moir Pathology Pty Limited Barratt and Smith Pathology Southern Pathology Services Pty Ltd Sonic Healthcare Ltd FILE NUMBER: 4868 and 4869 of 2002 CORAM: Sams DP Applications for exemption from redundancy provisions in awards - section 18 of the Act - sale of business - ongoing employment on equivilent terms and conditions - consent of parties CATCHWORDS : Held, applications not contrary to the public interest - best interests of employees and employer considered - consent of parties - similar order made in Queensland jurisdiction - life of order - exemption granted - orders made LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 10/08/2002 DATE OF JUDGMENT: 10/08/2002 APPLICANT: Mr T McCarthy (Agent - Employment Relations Association Pty Ltd) RESPONDENTS: LEGAL REPRESENTATIVES: Ms T Mihailuk (Federated Clerks Union of Australia, New South Wales Branch) Ms J Taverner ( Australian Liquor, Hospitality and Miscellaneous Workers' Union New South Wales Branch) Ms M Stanko (Douglass Hanly Moir Pathology Pty Ltd, Barratt and Smith Pathology, Southern Pathology Services Pty Ltd and Sonic Healthcare Ltd JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP 21 October 2002 Matter No. IRC02/4868 PRIVATE PATHOLOGY LABORATORIES (STATE) AWARD Application by Queensland Medical Laboratory (Partnership) for exemption pursuant to section 18 of the Industrial Relations Act 1996. Matter No. IRC02/4869 CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by Queensland Medical Laboratory (Partnership) for exemption pursuant to section 18 of the Industrial Relations Act 1996. DECISION [2002] NSWIRComm 268 1 This is an application, pursuant to s18 of the Industrial Relations Act, 1996 ("the Act"), by Queensland Medical Laboratory (Partnership), ("the applicant") to vary the Private Pathology Laboratories (State) Award (319 IG 377) and the Clerical and Administrative Employees (State) Award (296 IG 619) ("the awards") such as to exempt the applicant from redundancy provisions in the awards. 2 At a hearing of the matter on 8 October 2002, Mr T McCarthy appeared for the applicant. Ms T Mihailuk appeared for the Federated Clerks Union of Australia, New South Wales Branch; Ms J Taverner appeared for Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch and Ms M Stanko appeared for the Douglass Hanly Moir Pathology Pty Ltd, Barratt and Smith Pathology, Southern Pathology Services Pty Ltd and Sonic Healthcare Ltd. 3 Mr McCarthy sought approval of the Commission for a variation of the awards in terms of Schedule A to the application. 4 The orders sought were in the following terms: In matter IRC02/4868 Queensland Medical Laboratory (Partnership) is exempt from making severance payments under clause 5A Redundancy of the award to any employee whose employment is terminated by the applicant on 30 September 2002 who has been offered employment on a continuing basis with Mayne Health Pathology Pty Ltd from 1 October 2002 whether or not the employee accepts the offer of employment with Mayne Health Pathology Pty Ltd. In matter IRC02/4869 Queensland Medical Laboratory (Partnership) is exempt from making severance payments under clause 39 Redundancy of the award to any employee whose employment is terminated by the applicant on 30 September 2002 who has been offered employment on a continuing basis with Mayne Health Pathology Pty Ltd from 1 October 2002 whether or not the employee accepts the offer of employment with Mayne Health Pathology Pty Ltd. 5 All parties consented to the applications. 6 As these are relatively unusual applications, it is appropriate that I refer to the basis for them and the relevant section of the statute under which they have been made. 7 In June 2002 the applicant advised some fifty employees at its pathology laboratories in Tweed Heads, Tamworth and Armidale that it was to become part of Mayne Health Pathology Pty Ltd. 8 The sale transfer occurred on 30 September and Mayne Health Pathology offered all employees ongoing employment on equivalent terms. In other words, all employees continued their employment on the same terms and conditions as they had previously enjoyed. 9 The applicant seeks exemption from paying redundancy pay as the employees were not redundant and had been offered acceptable comparable employment. 10 I note the limited scope of the order does not affect the employees' redundancy entitlements in any future redundancy situation. 11 The Commission was made aware of a similar order made on 4 September 2002 by Bloomfield C of the Queensland Industrial Relations Commission concerning the applicant's operations in that state. (No. B1342/02) 12 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. 13 Having heard the submissions of the parties and being aware of the difficult circumstances for both employees and employers in country locations, I am satisfied that it would not be contrary to the public interest for these orders to be made. Moreover, it is in the best interests of the employees and employers that I do so. 14 Having regard to the consent of the parties the Commission is prepared to make the exemption order pursuant to s 18 of the Act in terms of the schedules attached to the applications in both matters. The orders for exemption shall take effect from 4 September 2002 and remain in force for a period of six months thereafter. I note nevertheless the exemption orders relate to a specific period of time, being 30 September and 1 October this year. 15 Leave is reserved to any of the parties to approach the Commission should there be any problems arising from the operation of the order during the period of its life over the next six months from 4 September 2002. 16 These proceedings are 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.