Industrial Relations Commission of New South Wales CITATION : Newcastle University Union Food and Beverage Staff (State) Award 1997. Application by the Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch for variation re State Wage Case 2001 [2001] NSWIRComm 203 PARTIES : Australian Liquor, Hospitality & Miscellaneous Workers' Union, NSW Branch Newcastle University Union FILE NUMBER: IRC4554 of 2001 CORAM: Harrison DP CATCHWORDS : Application for variation of award re State Wage Case 2001 - application for absorption refused - nexus with Restaurants &c Employees (State) Award broken by 1997 consent award. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : State Wage Case 2001 HEARING DATES: 07/18/2001 DATE OF JUDGMENT: 09/04/2001 Mr J Barry Australian Liquor, Hospitality & Miscellaneous Workers' Union, NSW Branch LEGAL REPRESENTATIVES: RESPONDENT Mr T McDonald Employers First JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 4 September 2001 Matter No IRC 4554 of 2001 NEWCASTLE UNIVERSITY UNION FOOD AND BEVERAGE STAFF (STATE) AWARD 1997 Application by the Australian, Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch for variation re State Wage Case 2001 DECISION [NSWIRComm 203] 1 This is an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales (ALHMWU) for variation of the Newcastle University Union Food and Beverage Staff (State) Award 1997 (308 IG149) ('the Award') in accordance with the 2001 State Wage Case (IRC 3025 of 2001, 31 May 2001). 2 The application in this matter was filed on 9 July 2001 and subject to hearing on 18 July 2001. Mr J Barry appeared on behalf of the ALHMWU. Mr T McDonald of Employers First appeared on behalf of the Newcastle University Union ('the University Union'), the respondent employer. 3 The parties were not in agreement in relation to the variation, Mr Barry tendering an amended variation (exhibit 1). 4 Mr McDonald put that the principles of absorption should apply, tendering an alternate variation to the one sought by the ALHMWU (exhibit 3). 5 Mr McDonald submitted that the current award should be considered an enterprise award with nexus to the Restaurants, &c., Employees (State) Award (321 IG 759) ('the Restaurant Award'). Mr McDonald submitted that this award should be viewed as an enterprise arrangement made in conjunction with the Restaurant Award and movements in the Restaurant Award be absorbed in accordance with principles 8(c) and 8(d) of the 2001 Wage Fixation Principles. 6 Mr Barry rejected this assertion submitting that the nexus with the Restaurant award was broken on the making of this award. Mr Barry relied upon Clause 42 of the award, Area, Incidence and Duration which extends coverage to all employees "who were previously engaged under the provisions of the Restaurants, &c., Employees (State) Award". 7 Mr Barry noted that application of the 1998 State Wage Case (79 IR 416) remains an issue between the parties, proceedings in respect of which have been completed and decision reserved. Mr Barry submitted that the arguments raised in this matter were not put in the 1999 or 2000 State Wage Case applications wherein the available wage increases were awarded by consent. 8 I find the submissions by Mr McDonald misdirected in this case. There is no relevant nexus with the Restaurant Award, the instant award arises to meet the unique circumstances of the University Union operations which do not fit with the Restaurant Industry or the Registered Clubs Industry, though said to exhibit features of each. 9 I am satisfied that the variation as put by the ALHMWU (exhibit 1) meets the requirements of the 2001 State Wage Case. 10 The Award is appropriately varied in the terms of exhibit 1, the variation sought by the ALHMWU, with effect from the first full pay period to commence on or after 20 July 2001. oo0oo 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.