Industrial Relations Commission of New South Wales CITATION: Private Hospital (Named Respondents) (State) Award [2007] NSWIRComm 1097 REPRESENTATIVE OF EMPLOYEES Health Services Union PARTIES: REPRESENTATIVES OF EMPLOYEES Leana Street Consulting Pty Limited Private Hospitals Association of New South Wales FILE NUMBER(S): IRC 1612 of 2007 CORAM: Connor C CATCHWORDS: award review - private hospitals - status of employer - hybrid award covering trading corporations and non-trading organisations - award review completed LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act, 2005 CASES CITED: Review of Awards Case (1998) 85 IR 38 HEARING DATES: 19/12/2007 EXTEMPORE JUDGMENT DATE : 19 December 2007 REPRESENTATIVE OF EMPLOYEES Bob Morgan Health Services Union LEGAL REPRESENTATIVES: REPRESENTATIVE OF EMPLOYERS Leana Street Leana Street Consulting Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 19 December, 2007 Matter No IRC 1612 of 2007 Private Hospital (Named Respondents) (State) Award Notice of award review under S.19 of the Industrial Relations Act, 1996 DECISION [2007] NSWIRComm 1097 1 A State award - the Private Hospital (Named Respondents) (State) Award - has been made between the Health Services Union and a number of named private hospitals set out in Clause 51, Area, Incidence and Duration. That State Award has been referred to me for review pursuant to S.19(1) of the 1996 Industrial Relations Act: "The Commission is required to review each award before September, 2001 and subsequently at least once 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 and Practice Direction No.13. 2 The Registry has set down a call over of the matter on Friday, 23 November, 2007 in accordance with Practice Direction No.13 [Clause 4] and I adjourned the proceedings for a hearing on Thursday, 29 November, 2007, which I vacated. I set the matter down instead for a hearing on Wednesday, 19 December, 2007. In the proceedings Mr Morgan represented the Health Services Union, Ms Street of Leona Street Consulting Pty Limited represented the named respondent private hospitals and the Private Hospitals Association of New South Wales. 3 There is some confusion concerning this matter, which is the reason I found it necessary to adjourn the proceedings. By a 2006 amendment to the State IR Act - Part 8A of Schedule 4 [S.44C] - all State consent enterprise awards for constitutional corporation [S.44C(1)(a)], ie foreign, trading or financial corporations within the meaning of S.51(xx) of the Commonwealth Constitution which would otherwise be bound under the 2005 Federal Workplace Relations Amendment (Work Choices) Act have been converted into enterprise agreements and, as such, become preserved State agreements [PSA's] for the purpose of Work Choices. In terms of S.44C(3)(a): "...an award to which this clause applies ceases to have effect as an award, but only to the extent to which it applies to employees of a constitutional corporation..." Consequently, any State enterprise award covering employees of a S.51(xx) corporation would no longer be a State award for review under S.19 and, among other things, my power to rescind it would be proscribed. 4 Ms Street has written to me to confirm her belief that, with the exception of two private hospitals (Wesley Private Hospital and Wandene Private Hospital) owned and operated by Wesley Mission, the respondent private hospitals to the Private Hospital (Named Respondents) Award are all S.51(xx) corporations. Does that mean that the State award has been converted by S.44C into an enterprise agreement? I believe that the short answer to that is no. 5 As the name applies, the Private Hospital (Named Respondents) Award covers only named respondents and, to that extent, whilst it has very wide application, it does not have "common rule" application in New South Wales. By virtue of S.31(1)(a) an enterprise agreement may be made with a group of employees. But S.44C applies only where the employer is a S.51(xx) corporation. But the Private Hospital (Named Respondents) Award covers both S.51(xx) corporations as employer respondents and, to a substantially lesser extent, employer respondents which are not S.51(xx) corporations. It is a hybrid and is not something which, in my opinion, may comfortably be treated as an enterprise agreement under S.44C. The outcome, to my mind, is that the Private Hospital (Named Respondents) Award remains an instrument to which the S.19 review process continues to apply. 6 The parties are content for the existing Private Hospitals (Named Respondents) Award to remain in its present form. I am satisfied that it continues to comply with the requirements of S.19. It shall be retained in its present form and I note that the review process is completed on that basis. I make the new State award in those terms operative from the beginning of the first pay period to commence on or after Wednesday, 19 December, 2007. 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.