Industrial Relations Commission of New South Wales CITATION: Windscreens O'Brien (Glass Workers) Enterprise Bargaining Agreement Award [2007] NSWIRComm 1052 REPRESENTATIVE OF EMPLOYEES Construction, Forestry, Mining and Energy Union PARTIES: EMPLOYER O'Brien Glass Industries Limited FILE NUMBER(S): IRC 765 of 2007 CORAM: Connor C CATCHWORDS: award review - status of enterprise award - conversion to a preserved State agreement - enterprise award to be preserved - no application of the award review process 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: 21.08.2007 EXTEMPORE JUDGMENT DATE : 21 August 2007 REPRESENTATIVE OF EMPLOYEES Radhika Raju Construction, Forestry, Mining and Energy Union LEGAL REPRESENTATIVES: REPRESENTATIVE OF EMPLOYER Margaret Vu Australian Business Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Tuesday, 21 August, 2007 Matter No IRC 765 of 2007 Windscreens O'Brien (Glass Workers) Enterprise Bargaining Agreement Award Notice of award review pursuant to S.19 of the Industrial Relations Act, 1996 DECISION [2007] NSWIRComm 1052 1 A notice of award review under S.19 of the 1996 Industrial Relations Act with respect to the Windscreens O'Brien (Glass Workers) Enterprise Bargaining Agreement Award (1995) has been referred to me. 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 award 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 The Windscreen O'Brien Award was made by consent between O'Brien Glass Industries Limited and the Construction, Forestry, Mining and Energy Union. It applies in conjunction with the terms and conditions of the Glass Workers (State) Award. It was made in the middle of 1996 and was last reviewed under S.19 in late 2004. 3 By a 2006 amendment to the State IR Act - Part 8A of Schedule 4 [S.44C] - all State consent enterprise awards have been converted into preserved State agreements [PSA's]. Such PSA's extend to employment within a 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. 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..." It is, of course, unarguable that O'Brien Glass is a S.51(xx) corporation. Therefore, as a result of S.44C the Windscreen O'Brien Award ceases to be a State award and becomes instead a PSA. Consequently, the S.19 review process no longer applies to it. That is the view of both the CFMEU and O'Brien Glass. 4 The CFMEU had, in fact, written to me on Tuesday, 7 August, 2007 to that effect, viz: "...We now believe that the award ceases to have affect [ sic ] as a result of Schedule 4 Part 8A of the Industrial Relations Act, 1996. We respectfully ask that the Windscreens O'Brien (Glass Workers) Enterprise Bargaining Agreement Award be taken out of the list of awards to be reviewed pursuant to S.19 of the Act..." And the Australian Business Lawyers Pty Limited, acting for O'Brien Glass, had written to me on its behalf on Monday, 20 August, 2007 in the following terms: "...It is apparent that the Windscreens O'Brien (Glass Workers) Enterprise Bargaining Agreement Award ceased to have effect by operation of Part 8A of Schedule 4... It is our respectful submission that the review of the award under S.19 of the Industrial Relations Act, 1996 is not applicable... " 5 The S.19 review had been called over by Grayson DP and subsequently referred to me by him. It was the subject of proceedings before me on Tuesday, 21 August, 2007. In the proceedings on Tuesday, 7 August, 2007 Ms Raju represented the CMFEU. There was no appearance on behalf of Windscreens O'Brien. It relied on the ABL letter to me on Monday, 20 August, 2007. 6 Notwithstanding the fact that the Windscreen O'Brien Award was made 12 years ago, Ms Raju has still sought to preserve it. Her investigations have revealed that there are still four employees of O'Brien Glass covered by it. In the circumstances, I propose to conclude this matter on the basis that, as the parties agree and submit for these proceeding, the Windscreens O'Brien Award, now as a PSA, falls beyond the S.19 review process. And as Ms Raju has submitted in the proceedings, despite its age, it will continue in its present form until the parties themselves agree to its rescission. 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