Industrial Relations Commission of New South Wales CITATION : Local Government (State) Award 2001, Re [2004] NSWIRComm 24 APPLICANT: United Services Union PARTIES : RESPONDENTS: Local Government and Shires Association of New South Wales Local Government Engineers' Association of New South Wales FILE NUMBER: IRC 3847 of 2002 CORAM: Wright J President; Walton J Vice-President; Sams DP; Bishop C CATCHWORDS : Award - Special case - Equal remuneration principle - Hours of work - Wage-fixing principles - State Wage Case 2003 - Principles 2(e), 7 and 14 - Discretion of Commission - Application granted by consent - Award varied LEGISLATION CITED : Industrial Relations Act 1996 s 21 s 23 CASES CITED : State Wage Case 2003 (2003) 121 IR 446 HEARING DATES: 02/16/2004 EXTEMPORE JUDGMENT DATE : 02/16/2004 APPLICANT: Mr B Kruse with Ms L Fraser for United Services Union RESPONDENTS: LEGAL REPRESENTATIVES: Mr A Dansie with Ms L Tiddy for the Local Government and Shires Association of New South Wales Mr G Brock for the Local Government Engineers' Association of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President SAMS DP BISHOP C Monday 16 February 2004 Matter No IRC 3847 of 2002 LOCAL GOVERNMENT (STATE) AWARD 2001 Application by Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division for variation re community services DECISION OF THE COMMISSION (Extempore) [2004] NSWIRComm 24 1 The Commission has before it today a consent application to vary the Local Government (State) Award 2001 in respect of certain categories of employment in the community services area of local government councils. The claim has been before the Commission for directions and conciliation on a number of earlier occasions and was, in the absence of agreement, referred to the Full Bench for hearing in September 2003 at which time the matter was listed for hearing before the Full Bench from 16 to 20 February 2004. 2 Agreement has now been reached between the parties and the claim which is pressed today relates to approximately 500 employees in senior community services positions in the professional/specialist band of the award. Those employees have traditionally worked a 38 hour week and the positions in question are predominately held by women. Positions elsewhere in local government employment of equivalent (or lesser) skill and accountability levels are held predominately by males and receive the same award rates of pay based on a 35 hour week. 3 The agreed variation to the award will result in the hours of work of all of the employees, both male and female, referred to earlier being equalized at 35 hours per week. The variation proposed will have a long phasing in period as it will not have effect until 16 February 2005. Councils, however, will not be precluded from implementing the agreement from earlier dates. 4 In order to ensure that the cost implications of the variations are minimised the parties' agreement has been accompanied by a detailed Memorandum of Understanding which relevantly provides: "2(ii) Councils will have flexibility in implementing this variation as they consider measures and processes to suit their individual needs. Measures considered may seek to minimise cost and promote the efficient and long-term provision of councils' community services and children's services and these measures include but will not be limited to: · Adjustment of rosters · Variation of opening hours · Payment of overtime · Structured time in lieu arrangements · Flexible working hour arrangements · Accrual of additional leave · Job redesign · Conversion of leave balances (iii) Agreement to introduce changes in work practices relating to the implementation of this variation will be consistent with the consultative provisions of the Award and will not be unreasonably withheld. (iv) The parties do not intend that there be double counting arising from the implementation of the 35 hour week. Where payments have been made to employees in recognition of the requirement that community services and children's services staff work additional hours, such payments may be absorbed to the extent that they relate to the working of a 38 as opposed to a 35 hour week." 5 The applicant, the United Services Union, has also given a number of acknowledgments or concessions which are of significance. They include: "2(v) The USU agrees that a Council may apply to the IRC to temporarily or otherwise, reduce, postpone, and/or phase in the application of any increase in labour costs associated with this variation on the ground of very serious or extreme economic adversity. Such applications will be processed in accordance with section 18 of the Industrial Relations Act 1996. 3(i) The USU agrees that the variation to the award rectifies the disparity in hours experienced by employees engaged in community services and children's services positions evaluated in Band 3 of the Award. (ii) The USU acknowledges that there is no undervaluation on a gender basis of positions covered by the functions of community services and children's services evaluated as Band 2 of the Award with respect to hours of work. (iii) The USU will not use this variation as precedent for pursuing claims for a reduction in hours for other employees under the Award. (iv) The USU acknowledges that the Award establishes processes whereby the value of work is assessed including the Award skill descriptors and the operation of the relevant council salary systems." 6 We consider that the application should be granted. In reaching this conclusion we note the acceptance by the employer parties to the award that the application comes within Principle 14, Equal remuneration and other conditions, of the State Wage Case 2003 Principles (see (2003) 121 IR 446 at 472) and that ss 21 and 23 of the Industrial Relations Act 1996 are also in point, noting that s 23 of the Act requires the Commission to "ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value". 7 In approaching the matter in that way the employer parties stress the significance of the terms of the Memorandum of Understanding which are in part referable to paragraph (i) of the equal remuneration principle which provides: "(i) Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees' overaward payments." The parties also rely on principle 2(e) of the wage-fixing principles. 8 We consider that the wage-fixing principles plainly apply to the present application and that the proper application of the principles, particularly having regard to principle 14 and the terms of ss 21 and 23 of the statute, permit the application to be granted. 9 We consider that the application represents an apparently unique conjunction of circumstances which, having regard to the provisions of the principles and those of the statute earlier noted, results in a discretion to grant the application notwithstanding principle 7, Standard hours, of the State Wage Case principles. In that respect the application may be considered exceptional and the parties acted appropriately in recognising in their agreement and related Memorandum of Understanding the non-precedent basis of the agreement and in adopting appropriate measures to reduce or minimize the cost implications of their agreement. 10 We therefore propose to vary the Local Government (State) Award 2001 in terms of Ex A which provides that the variation, although effective today, is, in accordance with the agreement, not legally effective until 16 February 2005. 11 The applicant is directed to file and serve the final version of the variation in both hard copy and electronic or disk form within 10 days of today. _________________ 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.