Real Estate Industry (Clerical and Administrative Employees) (State) Award, Re [2003] NSWIRComm 149

Industrial Relations Commission of New South Wales

CITATION : Real Estate Industry (Clerical and Administrative Employees) (State) Award, Re [2003] NSWIRComm 149 APPELLANT: Federated Clerks' Union of Australia, New South Wales Branch PARTIES : RESPONDENTS: Real Estate Employers' Federation of New South Wales Employers First FILE NUMBER: IRC 566 of 2002 CORAM: Wright J President; Walton J Vice-President; McLeay C CATCHWORDS : Appeal - Special case - Application for a new industry specific award for clerical staff in real estate industry - Application based on changes in the nature of the industry - Application alleged Clerical and Administrative Employees (State) Award provided insufficient flexibilities in work patterns as it required overtime to be paid for work performed on weekends - New award for clerical employees in real estate industry - Clerks' award varied - New award with significantly varied conditions - Penalties - Weekend work - Part-time and casual work conditions - Nature of appeal - Parties on appeal bound by the conduct of their case at first instance - Appellant failed to lead evidence or cross-examine witnesses - Failure to lead an evidentiary case created considerable difficulties for resolution of proceedings at first instance and on appeal - Evidentiary issues in special case applications - Commissioner failed to properly consider each aspect of the case - Particularly in relation to part-time and casual work patterns - Case turns on its own facts - No error demonstrated re weekend penalties - General standard not established - Commissioner erred in assessment of part-time and casual conditions - Leave to appeal granted - Appeal allowed in part - Award varied LEGISLATION CITED : Industrial Relations Act 1996 s10 Part 5 of Chapter 2 s18 s191 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Club Employees (State) Award Re [2002] NSWIRComm 362 Coulton v Holcombe (1986) 162 CLR 1 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award Re (2002) 116 IR 361 In Re Shift Workers Case 1972 [1972] AR 15 at 633 King v State Bank of New South Wales [2002] NSWIRComm 353 CASES CITED : Knowles v Anglican Church Property Trust (No2) (1999) 95 IR 380 Occupational Health Nurses' Superannuation (State) Award (1996) 85 IR 158 Operational Ambulance Officers (State) Award Re (2001) 113 IR 384 Public Hospital Nurses (State) Award (2002) 115 IR 183 Pastoral Industry (State) Award Re (2001) 104 IR 168 Sawyer v Cutler-Hammer Pty Ltd [2002] NSWIRComm 233 State Part Time Work Case (1998) 78 IR 172 Teachers (Non-Government) (Schools) (State) Award and other Awards (unreported, Fisher P, Sweeney J, Varnum DP, 17 August 1990) HEARING DATES: 05/15/2002; 05/27/2002 DATE OF JUDGMENT: 05/23/2003