Industrial Relations Commission of New South Wales CITATION: Private Pathology Laboratories (State) Award [2007] NSWIRComm 1083 APPLICANT Liquor, Hospitality and Miscellaneous Union RESPONDENTS PARTIES: Douglass Hanly Moir Pathology Pty Limited Barratt and Smith Pathology Southern Pathology Services Pty Limited Sonic Healthcare Limited Australian Federation of Employers and Industries Australian Business Industrial FILE NUMBER(S): IRC 743 and 1909 of 2007 CORAM: Connor C CATCHWORDS: application for a new award - award review - private pathology laboratories - new award made by consent - standing of parties to the making of a new award Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations (Child Employment) Act, 2006 Federal Workplace Relations Amendment (Work Choices) Act, 2005 Appeal by Haraszti against the Taxi Industry (Contract Drivers) Contract Determination (1996) 40 AILR Rep.5-105 Child Protection Principles Case (2007) 163 IR 41 CASES CITED: New South Wales v. Commonwealth of Australia (2006) 156 IR 1 Plumbers and Gasfitters (State) Conciliation Committee Case (1936) AR 341 Review of Awards Case (1998) 85 IR 38 HEARING DATES: 31/10/2007 DATE OF JUDGMENT: 7 November 2007 APPLICANT Mick Vance Liquor, Hospitality and Miscellaneous Union FIRST RESPONDENT Marg Stanko Douglas Hanly Moir Pathology Pty Limited Barratt and Smith Pathology LEGAL REPRESENTATIVES: Southern Pathology Services Pty Limited Sonic Healthcare Limited SECOND RESPONDENT Tony Doyle Australian Federation of Employers and Industries THIRD RESPONDENT Margaret Vu Australian Business Industrial DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 7 November, 2007 Matter Nos IRC 743 and 1909 of 2007 Private Pathology Laboratories (State) Award Notice of award review pursuant to S.19 of the Industrial Relations Act, 1996 Application for a new award under S.11 of the Industrial Relations Act, 1996 DECISION [2007] NSWIRComm 1083 Preliminary 1 A notice of award review under S.19(1) of the 1996 Industrial Relations Act has been completed by Registry staff with respect to the Private Pathology Laboratories (State) Award. In terms of S.19(1): "The Commission is required to review each award before September, 2001 and subsequently at least one in every three years." The purpose of the review process is to modernise and consolidate State awards and, where appropriate, rescind obsolete awards in accordance with the principles set out by the Full Bench of the Commission (Wright J - President, Hungerford and Schmidt JJ, Sams DP and Redman C) in the Review of Awards Case (1998) 85 IR 38. 2 In accordance with Practice Direction No.13 (Clause 4) the matter was the subject of a call over before Grayson DP on Monday, 23 July, 2007 and subsequently referred to me. I set it down for a mention on Wednesday, 19 September, 2007 and a further mention on Friday, 5 October, 2007. I understood that the parties had reached agreement on the form of the State Private Pathology Laboratories Award and it was my intention to convert the mention on Friday, 5 October, 2007 into a hearing to bring the matter to a conclusion. However, I found it necessary to adjourn the matter for a further mention on Wednesday, 24 October, 2007 and for a hearing on Wednesday, 31 October, 2007 in the light of certain jurisdictional difficulties concerning the standing of some of the parties appearing in the proceedings which arose in those proceedings. I will discuss that issue later in this decision as it still remains a point of disagreement at the bar table. 3 In fact, on Thursday, 11 October, 2007 the Liquor, Hospitality and Miscellaneous Union lodged an application for a new State Private Pathology Laboratories Award, with a request that it be referred to me to be considered together with the S.19 review. The LHMU application seeks to replace the current State Private Pathology Laboratories Award with a new consolidated award (incorporating in the process the S.19 review). The new State award as amended in the hearing on Wednesday, 31 October, 2007 [Exhibits 1 and 2] is made with the consent of the parties, viz: * Mr Vance represented the Liquor, Hospitality and Miscellaneous Union; * Ms Stanko represented Douglass Hanly Moir Pathology Pty Limited, Barratt and Smith Pathology, Southern Pathology Services Pty Limited and Sonic Healthcare Limited; * Mr Doyle represented the Australian Federation of Employers and Industries (formerly Employers First) and, as a peak council, announced its intervention in the proceedings under S.167(3); and * Ms Vu represented Australian Business Industrial. The New Award 4 I propose to make the new State Private Pathology Laboratories Award in accordance with Exhibits 1 and 2. The S.19 review process is therefore otiose. I rescind the previous State award and replace it with the new State award. That new State award shall operate from the beginning of the first pay period to commence or after Wednesday, 31 October, 2007. It shall apply for a period of twelve months, thereby complying with S.16(2) by which the nominal term of State awards may extend within the range of one year and three years. It continues to provide the mandatory dispute settlement procedure [Clause 30, Grievance and Industrial Dispute Procedure] required by S.14 and provisions by which the parties propose that all reasonable steps will be taken, consistent with S.3(f) to eliminate discrimination in the workplace [Clause 2, Anti-Discrimination]. The Question of Standing 5 In the proceedings on Friday, 5 October, 20007 and Wednesday, 24 October, 2007 Mr Doyle foreshadowed objection to the appearance of Ms Stanko in the proceedings, arguing that the employers she represented were, in fact, not properly respondents to the State Private Pathology Laboratories Award. In fact, Douglass Hanly Moir, Barratt and Smith Pathology, Southern Pathology Services and Sonic Express are respondents to a separate State award - the Douglass Hanly Moir, Barratt and Smith and Southern Pathology (State) Award. 6 In terms of S.167(3): "A State peak council may intervene in any proceedings before the Commission if it establishes that it or any one or more of its members has a sufficient interest in the proceedings." The AFEI is a peak council and clearly may intervene in any proceedings before the Commission provided only that it can establish an interest in its own right or on behalf of its members. That is its right under S.167(3). 7 But equally, at my discretion, intervention may be permitted in these proceedings to any individual or organisation who is able to satisfy me that they have a sufficient interest in the proceedings. For instance in the Plumbers and Gasfitters (State) Conciliation Committee Case (1936) AR 341 the Full Bench of the former State Industrial Commission (Cantor, Webb and Ferguson JJ) commented (at p.345) on an application by an employer who was not a party to a particular State award to intervene in proceedings concerning that State award, viz: "...Although we have held that the (employer) is not entitled as of right to appear and to be heard before the Commission in an application for an award which, when made, will not directly bind (it) or its employees, it by no means follows that it is not within the discretion of the Commission to permit the (employer) or any industrial union representing its employees to intervene and be heard in such a proceeding either generally or for such limited purposes as the Commission may consider proper..." In Appeal by Haraszti against the Taxi Industry (Contract Drivers) Contract Determination (1996) 40 AILR Rep.5-105 the Full Bench of the Commission (Cahill J - Vice President, Peterson J and Redman C) stated that: "...in our view, the Commission has an inherent power to grant intervention in proceedings to persons who are ineligible for party status but are able to demonstrate a sufficient interest in the proceedings or that may be affected by their outcome in an indirect way..." I am satisfied that Ms Stanko's clients have such an interest in a State "common rule" award which affects the work in which they are engaged as to justify her intervention in this hearing. 8 Furthermore, I believe that it remains open to Ms Stanko to appear as a party to both the State Private Pathology Laboratories Award and in these proceedings rather than as an intervener. She has announced her appearance in the proceedings on that basis. She appears on the party card for the State Private Pathology Laboratories Award on behalf of her clients, whom she informs me actually engage junior staff under that State award. Mr Doyle's response is that, in any event, Ms Stanko's clients are trading corporations within the meaning of S.51(xx) of the Commonwealth Constitution and, by virtue of the 2005 Federal Workplace Relations Amendment (Work Choices) Act, are no longer covered by the State Private Pathology Laboratories Award. 9 Insofar as S.51(xx) corporations are concerned, the existing Private Pathology Laboratories Award has been converted into a "notional agreement preserving State awards" [a NAPSA] but it is otherwise unaffected and binding on the parties. And the majority of the High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ with Kirby and Callinan JJ dissenting) has confirmed the validity of Work Choices to that extent in New South Wales v. Commonwealth of Australia (2006) 156 IR 1. The outcome would appear to me to be that any new State award may not necessarily bind a S.51(xx) corporation. But, in any event, many State "common rule" awards often have an importance independent of their actual coverage of employers and employees: they provide proper general regulation in certain industries in this State - a benchmark position for proper rates of pay and employment conditions in those particular industries - which has value to employees and employers alike, notwithstanding that particular employers may, by virtue of Work Choices, strictly fall outside that State award. 10 Whether or not Ms Stanko's clients are, in fact, S.51(xx) corporations was not argued before me. But, in any event, the position for junior employees, on which Ms Stanko relies for her appearance as a party in these proceedings, are expressly excluded from Work Choices. Such employees fall under the protection afforded in this State by the 2006 Industrial Relations (Child Employment) Act which came into operation in late 2006. Under that State legislation, to provide some protection to junior employees from exploitation as they commence their employment, S.51(xx) corporations employing junior employees must provide conditions of employment which do not on balance result in a net detriment to the junior employee when compared to minimum conditions derived from a comparable State award and State industrial legislation. 11 In the Child Protection Principles Case (2007) 163 IR 41 the Full Bench of the Commission (Wright J - President, Walton J - Vice President, Schmidt J, Sams DP and Boland J) commented in that respect (at p.93): "...The State Parliament enacted the Child Employment Act in November, 2006 as a response to the consequences of the Commonwealth Parliament's enactment of the Work Choices legislation in March, 2006. That legislation provided for the making of agreements, such as AWA's, which supplanted the terms of awards and agreements made or approved under Federal and State legislation. S.16(1) of the Work Choices legislation had the effect that constitutional corporations were no longer bound by State industrial instruments, such as awards and enterprise agreements, which had formerly applied to them and their employees, including child employees. So far as corporate employers to whom State awards applied were concerned, for example..., the State awards became 'NAPSA's' under the Work Choices legislation. S.16(2) and (3) of the Work Choices legislation, however, preserve State and Territory laws dealing with child labour so that they might operate concurrently with the relevant Commonwealth law, subject to the provisions of S.109 of the Constitution. There is no question that the Child Employment Act is such a law and that it operates in relation to the employment of children in this State..." And further, the Full Bench stated (at p.107) that: "...The Child Employment Act is concerned with the welfare of children who are in paid employment and seeks to exclude their exploitation by corporate employers. This statutory purpose may be achieved by requiring that when children are employed by a corporate employer, they either receive conditions of employment that are the same provisions as of a comparable State award and industrial legislation or, if there is a departure from those provisions, that there is no detriment to the child..." Therefore, State awards remain binding on S.51(xx) corporations, at least to the extent of their coverage of junior employees and the State Private Pathology Laboratories Award provides a proper mechanism by which such protection may be provided in one area of junior employment. 12 It must follow from such a conclusion that Ms Stanko has a legitimate standing as a party in these proceedings and as a party to the State Private Pathology Laboratories Award itself on behalf of her clients. I conclude that she has such standing. P J CONNOR Commissioner 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.