Industrial Relations Commission of New South Wales CITATION : Poultry Industry Livestock (State) Award [2004] NSWIRComm 9 APPLICANT PARTIES : Bartter Enterprises Pty Limited RESPONDENT Australian Workers' Union, Greater New South Wales Branch FILE NUMBER: 7159 of 2003 CORAM: Sams DP Application for exemption from severance payments - s18 of the Act - ongoing acceptable employment - consent of parties. CATCHWORDS : Held, best interests of employees and employer considered - consent of parties - life of order - exemption granted - order made. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 12/18/2003 DATE OF JUDGMENT: 02/02/2004 APPLICANT Mr P Ludeke, Agent LEGAL REPRESENTATIVES: RESPONDENT Mr R Tripodi, Australian Workers' Union, Greater New South Wales Branch JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 2 February 2004 Matter No. IRC03/7159 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 9 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 The specific 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. 3 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. 4 Clause 29(E)(iii) of the Award is expressed 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 on 18 December 2003 at which time Mr P Ludeke represented the applicant and Mr R Tripodi represented the Union. The matter was adjourned for hearing on 8 March 2004 and directions were issued for the filing and service of evidentiary material. 6 However, on 21 January 2004 Mr Ludeke wrote to the Commission advising that agreement had been reached with the Union on a form of orders to resolve the matter. The Commission was requested to make consent orders in chambers reflecting the short minutes of order filed. Those minutes 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 A Tagalog, A Oldham, G Worthington, J Earl, J Russell, W Hutchins, W Stewart an F Myers 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 Farm 63, Farm 64, Farm 65 and Farm 66 formerly owned and operated by Bartter and its associated companies to RFML on or about 22 December 2003. 2. Order 1 shall take effect from 16 December 2003 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 Commission intends to grant the application and make the orders sought. 8 I order accordingly. The date set for hearing is vacated. 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.