Industrial Relations Commission of New South Wales CITATION: Clercial and Administrative Employees (State) Award (No 3), Re [2006] NSWIRComm 26 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANTS Employers First (Matter No IRC2001/3613) Federated Clerks' Union of Australia, New South Wales Branch (Matter No IRC2003/1413) now called United Services Union RESPONDENTS Employers First (Matter No IRC2003/1413) PARTIES: Federated Clerks' Union of Australia, New South Wales Branch (Matter No IRC2001/3613) now called United Services Union Printing Industries Association of Australia Australian Medical Association (NSW) Limited Restaurant & Caterers Association of New South Wales Australian Business Industrial New South Wales Road Transport Association Inc Australian Industry Group New South Wales Branch FILE NUMBER(S): IRC 3613 of 2001 and IRC 1413 of 2003 CORAM: Wright J President; Sams DP; Staff J; Ritchie C CATCHWORDS: Award - Clerical Industry - Remaining issues from 2005 Full Bench decision: Re Clerical and Administrative Employees (State) Award (No 2) [2005] NSWIRComm 397- Certain matters agreed - Other matters not agreed - Conditions of employment - Terms of engagement - Hours of work - Meal break during weekend work - Whether allowance payable during sick leave - Savings provisions - Retrospectivety - Award made - Settlement of award. LEGISLATION CITED: Industrial Relations Act 1996 s15 CASES CITED: Clerical and Administrative Employees (State) Award (No 2), Re [2005] NSWIRComm 397 HEARING DATES: 19/12/2005; 27/01/2006 DATE OF JUDGMENT: 02/07/2006 APPLICANT (Matter No IRC2001/3613) Mr T McDonald Employers First APPLICANT (Matter No IRC2003/1413) Mr H Mette and Mr G Golledge United Services Union RESPONDENTS Mr T McDonald Employers First LEGAL REPRESENTATIVES: Printing Industries Association of Australia Australian Medical Association (NSW) Limited Restaurant & Caterers Association of New South Wales Mr H Mette and Mr G Golledge United Services Union Ms S Wellard Australian Business Industrial New South Wales Road Transport Association Inc Mr J Corlett Australian Industry Group New South Wales Branch JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Sams DP Staff J Ritchie C Tuesday 7 February 2006 Matter No IRC 3613 of 2001 CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by Employers First for a new award Matter No IRC 1413 of 2003 CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by the Federated Clerks' Union of Australia, New South Wales Branch for variation re clause 7 re shifts DECISION OF THE COMMISSION [2006] NSWIRComm 26 1 The Full Bench handed down its decision in these proceedings on 5 December 2005: see Re Clerical and Administrative Employees (State) Award (No. 2) [2005] NSWIRComm 397. 2 Towards the end of the decision the Full Bench said: [267] The new Award to be made is varied accordingly from the first pay period to commence on or after 30 January 2006. Consequential variations may be necessary in respect of other parts of the award. We direct that the Union file and serve by 12 noon on Thursday 15 December 2005 short minutes of the resulting new Award. [268] The Union made a number of submissions that the Commission should include a savings provision in favour of existing employees in respect of their current conditions of employment if changes were made to the current award either because of changes they had in substance accepted should be made to the award (such as to clauses 6 and 7), or where changes were made to the award because of the submissions made by Employers First. [269] We understand the basis for that submission. However, it was made in very general terms. Such a submission may be advanced with more precision now that the parties are aware of the decisions made. In this regard, the parties are directed to exchange and file any further submissions on that issue by 12 noon on 15 December 2005. The matter will be listed for hearing at 10.30 am on Monday 19 December 2005 at which time the Full Bench will consider the Short Minutes of the new Award and the issue as to the proposed savings provision. 3 Accordingly the matter came before the Full Bench on 19 December 2005. However, because of the extent of disagreement between the parties, and at their request, the matter was adjourned until 27 January 2006. 4 Between the two dates mentioned, further negotiations occurred between the parties and there was also assistance provided to the parties by means of conciliation conferences chaired by a member of the Full Bench, the Honourable Justice Staff. 5 When the matter returned to the Full Bench on 27 January 2006, the Commission was advised that agreement had been reached in respect of certain matters and that there remained a number of issues in dispute. 6 This decision deals with both the agreed and non-agreed matters. We conclude by formally making the award contemplated in the earlier decision. This decision should be read in conjunction with the decision of 5 December 2005 since it uses certain of the abbreviations and expressions set out in the earlier decision. Agreed Matters 7 Dealing first with the agreed matters, the following provisions were agreed to result from the decision made by the Full Bench in December 2005 as to the working of ordinary hours on Saturday and Sunday and the extension of ordinary hours on Monday to Friday to 7 pm. CLAUSE 4 - TERMS OF ENGAGEMENT 4,2 An employer shall inform each employee as to the terms of his/her employment and, in particular, whether he/she is a weekly, part-time or casual employee, employed on day and/or shift work or a combination thereof as provided for in clause 9 hours of work - Weekly Employees and Clause 10 Shiftwork CLAUSE 9 - HOURS OF WORK - WEEKLY EMPLOYEES 9.3 Where a 19 day/4 week cycle is worked, the ordinary hours of work shall not exceed 8 hours per day, Monday to Friday, inclusive, between the hours of 6.00am and 7.00pm. 9.4 Where a 10 day/2 week cycle is worked, the ordinary hours of work shall not exceed 8 hours per day, Monday to Friday, on 9 days of the cycle and 4 hours on any one day of the cycle, between the hours of 6.00am and 7.00pm. 9.5 Where a 5 day week is worked the ordinary hours of work shall be worked between the hours of 6.00am and 7.00pm, Monday to Friday inclusive, such that either: ... 8 It was also agreed that the following provision be inserted as sub-clause 10.1 in Clause 10, Hours of Work - Shift Workers: 10.1 Definitions An employee who works day work may also perform shift work or a combination of day and shift work. 9 Agreement was also reached on the question of meal allowances. The agreement involved the insertion of a new clause 13 in the award in the following terms: CLAUSE 13 ALLOWANCES AND EXPENSES 13.1 Meal Allowance - an employee working overtime shall be paid a meal allowance as set out in table 4 - Other Rates and Allowances of Part B - Monetary Rates in any of the following circumstances: Employee other than shift workers: · When required to work beyond 7.00pm · If overtime continues beyond 10.00pm - a further allowance. Shift workers: · When required to work overtime in excess of one hour on any shift · If overtime exceeds five hours on any shift - a further allowance. Non - Agreed Matters 10 Turning then to the non-agreed matters, these matters related to: (a) Meal breaks for employees working ordinary hours on Saturdays and Sundays pursuant to the decision of the Full Bench in that regard; (b) whether the 17 per cent allowance to be paid to an employee working ordinary hours between 6.00 pm and 7.00 pm on week days, should be paid when the employee is on sick leave; (c) certain issues concerning the savings provisions to be inserted in the new award including the application by Employers First to back date the variation made by the Full Bench concerning the working of ordinary hours on weekends; We shall deal with those matters seriatim. Meal Breaks 11 As to the issue of meal breaks for employees working ordinary hours on weekends, the Union contended that these employees should be provided with a 20 minute paid meal break whereas the employers argued that they should be provided with the "usual" unpaid meal break. The Union's contention was based on the proposition that the weekend work was "shift work" under the award. 12 The award we made in relation to the issue of weekend work arose from the particular circumstances of the proceedings before us and had regard to the arguments put particularly by the Union and the joint employers. We have accordingly permitted the working of ordinary hours on weekends on a basis analogous to shift work having regard to the submissions made by the parties and decided that, in order to qualify for work on this basis, employees would be classified as shift workers, albeit on a somewhat unusual basis. It must however be recognised that the provisions made depended upon the very particular arguments in the proceedings and the new category of shift workers created is unusual in terms of shift work provisions. In a practical sense, weekend work on the basis of ordinary time with the payment of weekend shift penalties is more like day work in its usual form. In those circumstances, we consider that the employers' submissions should be accepted and that persons working ordinary time on a weekend should be provided with the usual unpaid meal break rather than a 20 minute paid meal or crib break. 13 However, in varying the award in that way we should acknowledge that towards the end of their submissions the parties generally, including Employers First, accepted that it would be appropriate to include in the award an alternative provision providing for a paid meal break in situations where there was agreement to this approach. The alternative provision would involve the inclusion of a proviso that if the employer and employee agreed the employee could, instead of having the usual unpaid meal break, have a 20 minute paid meal or crib break. The award should be varied accordingly. Whether 17 per cent allowance to be paid to employees when on sick leave 14 The Union contended that the 17 per cent allowance to be paid to employees working ordinary hours between 6 pm and 7 pm on week days should be paid when employees are on sick leave. The employers submitted that the allowances should not be payable in respect of sick leave and relied upon the fact that the Saturday loading payable under this award (and, for that matter, in other awards) was not paid when the employee was on sick leave 15 We consider that the approach of the employers in this matter is correct and base our decision on the situation concerning the payment of the Saturday morning allowance under this award. We consider that is an allowance in some ways analagous to the 17 per cent allowance awarded, although calculated on a different basis. It would be therefore anomalous to provide that the 17 per cent allowance be paid in respect of sick leave when the Saturday morning allowance is not so paid, and we order accordingly. Savings provisions (including application by Employers First for retrospectivity) 16 In respect of the loading for shift workers who work between 6 pm and 7 pm, the Commission said at [264] of its December decision: [264] The employers propose that a savings provision should be included if the Commission granted this part of the application. In this regard, it is agreed that any existing employee who is in receipt of an afternoon shift loading and whose hours finish after 6.00 pm and at or before 7.00 pm would continue to receive the afternoon shift loading. In our view, such a savings provision is appropriate and the variation is granted upon that basis. 17 It follows, as the Commission has already determined this issue, the clause proposed by the Union to protect the entitlement to shift loading, which is in the following terms, should be inserted into the Award in clause 33.4.1: Shift workers employed on or before 30 January 2006 who were entitled to receive an afternoon shift loading shall continue to be entitled to receive the shift loading on all time worked on an afternoon shift or during a period which would have been part of an afternoon shift under the previous award. 18 The Union next sought a savings clause to protect existing employees from the change to the Award arising out of the Commission's decision to allow ordinary hours to be worked on weekends by employees who are not currently defined as shift workers under the current award. 19 The Union's principal concerns are to protect the entitlement to current rates of pay or payment arrangements through overtime, or other arrangements, whether these arise out of a strict interpretation of the Award or not and to preserve the present right to refuse to work on weekends, other than as ordinary time or as part of a five and a half day week. 20 Employers First submitted that no such saving provisions is required. 21 In our view, this matter should be resolved on the basis that a savings provision be granted for a limited period. We are of the view that an appropriate period would be until 31 December 2006. We therefore grant a savings provision in the following term to be included in cl 33.4.2: Employees employed on or before 30 January 2006 in receipt of overtime, or any other additional allowance or payment for working hours on weekends as part of a regular pattern of hours, shall not suffer a reduction in pay as a result of the introduction of this Award. This savings provision shall remain in force until 31 December 2006. 22 The Union sought a further savings clause to protect a weekly employee's right to refuse weekend work, except as overtime. 23 Employers First submitted there is no justification for the inclusion of a savings clause of this type. 24 In our view, such a savings provision would be contrary to the intent of the decision of the Commission. We therefore determine that employers shall be able to require the working of ordinary hours on weekends subject to the provision of 28 days notice to relevant employees. 25 Employers First sought a savings provision in respect of the date of commencement of the extension of ordinary hours of work to include 6.00 am to 6.00 pm on Saturday and Sunday, which would have the effect of providing loadings of time and one half and time and three quarters for ordinary hours on Saturday or Sunday respectively, to take effect on and from 30 January 2000. 26 The essential basis for this submission was that any employer who had, by whatever means, misunderstood the Award, may now be exposed to a sanction. Such a savings provision (or more correctly, a provision for retrospective operation) would mitigate any possible detriment an employer may suffer from interpreting the Award, albeit now found to be incorrect by the Full Bench, but consistent with the manner advanced by the Union and the group employers. 27 The Union opposed the application by Employers First. 28 We decline Employers First's application to have the relevant provision backdated to 30 January 2000. No submissions were advanced by Employers First during the case as to this matter notwithstanding that the conclusion reached by the Full Bench was a possible outcome having regard to the submissions put. In any event, it would be inappropriate to grant retrospectivity of this degree in award proceedings especially when there are doubts as to the jurisdiction to do so in this case, having regard to the terms of s15(3) of the Industrial Relations Act 1996. Conclusions and Making of the Award 29 The variations now made to the award, both by consent and otherwise, shall be incorporated in the award document to be prepared by the Union which shall be filed and served both in hard copy and electronic form within seven days of today. As noted in the earlier decision, the new award will take effect from the first pay period to commence on or after 30 January 2006. It shall remain in force until 31 December 2006. There should be a formal settlement of the award before the Registrar, or his delegate, no later than 24 February 2006, with recourse to a member of the Full Bench, if necessary. ____________ AMENDMENTS HISTORY: 13/02/2006 - Date in quoted provisions corrected to 30 January 2006 (errors in documents filed by parties) - Paragraph(s) 17 and 21 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.