Industrial Relations Commission of New South Wales CITATION : Charitable Sector Aged And Disability Services (State) Award. [2000] NSWIRComm 217 APPELLANT: New South Wales Nurses' Association FIRST RESPONDENT: The Health and Research Employees' Association of New South Wales PARTIES : SECOND RESPONDENT: Aged Care Association of New South Wales (Industrial) THIRD RESPONDENT Catholic Commission for Employment Relations FILE NUMBER: IRC3514 of 1999 CORAM: Wright J President; Walton J Vice-President; Connor C CATCHWORDS : Appeal from a decision re award application - Leave granted - Appellable error found - Parties to consider interim award - Consent of parties to an award application considered relevant but not decisive - Award designed to improve flexibility at the workplace - Award cut across traditional areas of coverage - Further proceedings before Full Bench - Further evidence admitted - Developments in intervening period - Circumstances for consideration of final order altered - Leave to appeal revisited - Not now appropriate to disturb decision at first instance - Leave to appeal rescinded - Appeal dismissed LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 09/15/1999; 12/01/1999; 07/19/2000; 10/23/2000 DATE OF JUDGMENT: 12/14/2000 APPELLANT: Mr M Kimber SC New South Wales Nurses' Assocition FIRST RESPONDENT: Mr J Trew QC and Mr J Murphy of Counsel SOLICITOR: Mr G Keating LEGAL REPRESENTATIVES: McClellands Solicitors SECOND RESPONDENT: Mr G Liggins Aged Care Association of New South Wales (Industrial) THIRD RESPONDENT Mr D Martin Catholic Commission for Employment Relations JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President CONNOR C Thursday 14 December 2000 MATTER No. IRC3514 of 1999 CHARITABLE SECTOR AGED AND DISABILITY SERVICES (STATE) AWARD. Application by New South Wales Nurses' Association for leave to appeal and appeal against a decision of Justice Maidment given on 15 June 1999 in Matter No. IRC5969 of 1998. DECISION OF THE COMMISSION [2000] NSWIRComm 217 1 On Tuesday, 15 June 1999, Maidment J handed down a decision on a proposed new Charitable Sector Aged and Disability Services (State) Award ("the award") which represented an agreement between the Health and Research Employees' Association of New South Wales ("HREA"), the Aged Services Association of New South Wales and the Catholic Commission for Employment Relations. The award contained increased salaries in a new classification structure, involving greater flexibility in work. His Honour commented in his decision that: The parties seek the making of a consent award which offers benefits both to employees and to the industry and, to my mind, would be permissive of a sensible improvement in labour flexibility. To refuse the application would perpetuate dated intrusions upon flexibility and efficiencies for reasons not based upon notions of benefits either to employees or the industry and thus to the general community… 2 The New South Wales Nurses' Association ("the Nurses' Association") sought, and was granted, leave to intervene in the proceedings before his Honour. A reason for its intervention in the proceedings was that the award cut across its traditional areas of coverage, with particular reference to the role of personal care assistants in the award and assistants in nursing in the Nursing Homes &c Nurses (State) Award. His Honour's decision to make the award was the subject of appeal by the Nurses' Association. 3 The Full Bench held in a statement issued on Friday, 14 April 2000 that: We have determined that leave to appeal should be granted and that appealable error has been demonstrated in this matter. and made the following observations as to the making of consent awards: The consent of the parties to an application for the making of an award is a relevant and often important matter in considering the application. However, consent is not determinative of an application and should be treated with caution where the consent award has the effect of varying another award affecting persons or organisations other than the consenting parties. This is particularly so where, as in this case, an affected organisation or person intervenes to oppose the new award. It should not be assumed that the opposing party or intervener in those circumstances bears any greater onus in the proceedings due to the existence of consent arrangements. Furthermore, where an application to make a new award or vary an award has the effect of altering existing demarcation arrangements, the Commission should guard against any arrangement by a union or employer to utilise the new award or award provisions to gain an advantage in any such demarcation arrangements or demarcation proceedings brought in relation to them, or which may have that effect. 4 The Full Bench also made the following observations as to the utility of the award: On the other hand, weight should be given to the consent arrangements before the Commission because of the importance of the agreed position reached between at least some of the relevant parties and the potential they provide for important reform at the workplaces to which the award applies. 5 In these circumstances, the parties were given the opportunity to consider certain matters before the Commission determined the final orders for the appeal. It was then indicated that: ... it may be appropriate to determine the appeal by varying the award made at first instance so that, in lieu of the award made, an interim award otherwise in similar terms be made pursuant to S.16(4)…and that the parties be directed to confer in relation to arrangements appropriate in the future as to: (a) award respondency; (b) union coverage in the area of the coverage of this award. However, it is observed that this course was not raised with the parties during the course of the proceedings before the Full Bench, the possible outcome referred to only arising when the Full Bench deliberated as to the decision on appeal. Accordingly, we consider that it is appropriate, prior to finalising the decision as to the merits of the appeal and the final orders to be made, to provide the parties with an opportunity to address this possible disposition of the appeal and variation to the award made by Maidment J. 6 As to the considerations weighing in favour of the making of an interim award, it was observed: The interim award approach raised for the parties' consideration and the associated proposals for consultation as to award respondency, union coverage, etc may represent an appropriate balance between, on the one hand, the desirable objectives of giving appropriate weight to consent arrangements and the resulting prospects for workplace reform and on the other hand, the importance of ensuring that any changes in award respondency and union coverage, only occur after appropriate consultation and, in the absence of agreement or, in the case of contest, by orderly use of the processes of the Commission. 7 Orders were made for the parties to confer and for the filing and service of written submissions consequent upon that statement. The matter was scheduled to resume before the Full Bench on 3 July and also on 21 July 2000. However, for a number of reasons, including the illness of counsel, the hearing before the Full Bench did not occur until 23 October 2000. 8 There were two intervening events that should be noted at this juncture. First, as part of the consent arrangements before Maidment J, cl 49, Area, Incidence and Duration, of the award had permitted exemption from it to any employer who had made an election to that effect in writing prior to Wednesday, 1 September 1999. That time frame has, of course, now been exceeded by the appeal process and the exemption has become redundant. The position of Baptist Community Services in the appeal proceedings was to preserve that right of election in the event of an interim award now being made (ie 28 days from the date that any such new interim award comes into effect). For reasons we shall shortly outline, it is not necessary to further consider that matter. 9 Secondly, the Nurses' Association was granted leave to adduce fresh evidence in the proceedings. This evidence demonstrated that related award proceedings had occurred in the intervening period. On Friday, 4 August 2000 the Nursing Homes &c Nurses (State) Award ("the Nursing Homes Award") was varied by McLeay C by consent of the parties to that award. The consent variation to the Nursing Homes Award, amongst other things, amended cl 30, Labour Flexibility, of that award to provide greater flexibility in the work of assistants in nursing. That clause originally provided that: ... the primary duties performed by the Assistant in nursing, being the delivery of direct care to residents, occupy no less than the majority of any shift for which they are rostered on duty … and was amended to read that: … the primary duties performed by the Assistant, being the delivery of direct care to residents, occupy no less than the majority of the hours for which they are employed in any 28 day cycle … 10 The effect of this amendment to the role of assistants in nursing was to provide substantially the same level of flexibility in the work of assistants in nursing homes as arose from the introduction of the classification "personal care assistants" in the award the subject of these proceedings. 11 We return now to the determination of the appeal. All parties to the proceedings have opposed the making of an interim award and sought that the Commission determine the appeal by upholding or dismissing (depending upon the respective cases advanced) the appeal by the Nurses' Association. 12 However, we have formed the view that in the light of the unusual circumstances of this matter that the question of leave to appeal should be revisited. This was a matter raised with the parties upon the further hearing of the appeal. The parties to the proceedings submitted that the Full Bench was not precluded from revisiting the question of leave or if appropriate, rescinding the grant of leave. 13 In raising the question of an interim award, the Commission was referring to a process by which the difficulties attending the decision of Maidment J (associated with the making of the consent award) may be largely overcome without disturbing the integrity of the consent arrangements between the parties to the award. The making of the Nursing Homes Award has effectively removed some of the concerns arising from the first instance proceedings. In our view, there is not now an appropriate basis to disturb the award made at first instance. 14 It is to be stressed that neither the initial decision of Maidment J, nor this appeal decision, in any way provides a demarcation of the work in question. One of the issues raised by the Nurses' Association before Maidment J and on appeal was the potential for demarcation disputes and competition for membership. As was indicated in the statement of the Full Bench, such activity should not occur in this crucial and sensitive area of work for aged members of the community. If it does, there are mechanisms to resolve the matter through the Commission without any disruption of work or of services. The Commission would, in such proceedings, no doubt have regard to any steps taken by either HREA or the Nurses' Association to engage in recruitment or other demarcation related activities to the detriment of employers or employees in this industry. However, the changed circumstances revealed from the further evidence now before the Full Bench should lead to the recission of the leave to appeal earlier granted. 15 We order as follows: 1. Leave to appeal earlier granted rescinded. 2. Leave to appeal is refused; 3. The appeal is dismissed. ______________ 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.