Industrial Relations Commission of New South Wales CITATION: Social and Community Services Employees (State) Award [2007] NSWIRComm 1101 APPLICANT Australian Services Union of NSW RESPONDENTS PARTIES: Australian Federation of Employers and Industries Australian Business Industrial Aged Care Association of Australia - NSW Aged and Community Services Association of NSW and ACT Catholic Commission for Employment Relations Jobs Australia Limited FILE NUMBER(S): 1321 of 2007 CORAM: McLeay C CATCHWORDS: Award variation - arising out of State Wage Case 2007 application - application had two elements referred to Full Bench - history arising from earlier Full Bench decision - only one element of claim proceeded - whether increases were cumulative - agreement reached between parties - Full Bench delegated decision - consent orders made LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Re Social and Community Services Employees (State) [2006] NSWIRComm 87 HEARING DATES: 13/12/07; 20/12/07. DATE OF JUDGMENT: 20 December 2007 APPLICANT Mr A Slevin of Counsel Solicitors Mr P Pasfield, Slater & Gordon Lawyers LEGAL REPRESENTATIVES: RESPONDENTS Mr S Benson of Counsel for AFEI Ms S Wellard for ABI, ACAA and ACSA Mr P Marchioni for CCER Mr K Godfrey for Jobs Australia Ltd DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 30 January 2008 Matter No IRC 1321 of 2007 Social and Community Services Employees (State) Award Application by the Australian Services Union of NSW for variation re State Wage Case 2007 REASONS FOR DECISION 1 The application for variation of the Social and Community Services Employees (State) Award has had an extensive history which resulted in one of two elements of the claim being proceeded with. The application as now amended seeks to vary the consent award made by the Full Bench in Re Social and Community Services Employees (State) Award [2006] NSW IRComm 87. 2 Following extensive conciliation before Deputy President Grayson a consent document was agreed. The matter was then delegated to me by the Full Bench for the purpose of dealing with consent orders arising from the settlement. 3 The Terms of Settlement agreed between the parties are as follows: TERMS OF SETTLEMENT By consent and without admission of liability the parties agree that: 1 The employer parties agreeing to a consent variation to the SACS (State) Award in the following terms: (a) Insert a new Table 3A providing for rates of pay effective from first pay period to commence on or after 1 January 2008 which is equivalent to 3.5% increase on rates of pay operative 1 July 2006 (see Table 2, Part IX of Award as gazetted). (b) Delete Table 4 of Award and insert new Table 4 Rates of Pay with rates being set at 3.5% higher than rates in Table 3A above. (c) Insert a new Clause 22.4 - Rates of Pay to the effect that, notwithstanding clause 22.3, on the first pay period to commence on or after 1/1/08 a one off payment of $23.50 is to be made subject to: (i) entitlement to the payment is confined to full-time and part-time employees in employment on 1 January 2008 or casual employees engaged between 1 July 2007 and 31 December 2007 on a regular and systematic basis; (ii) for part-time employees the entitlement is determined on a pro rata basis vis-à-vis a full-time employee based on the number of hours the part-time worker worked or the hours for which they were paid in first pay period in December 2007; (iii) an employer may delay the payment under this subclause to not later than 1 July 2008 on the basis of incapacity to pay; (iv) the payment may be absorbed into any over-award payments received by any employee between 1 July 2007 and 31 December 2007. (d) Delete Table 5 of the Award and insert new Table 6 - Allowances in accordance with Table in ASU's Draft Order. Except that the first 3.5% increase shall commence on the first full pay period 01/01/08. 2 The Australian Services Union of N.S.W. ("The ASU") will otherwise, concurrent with the making of the agreed variations to the Award, discontinue the remainder of its claims in matter no. 1321 of 2007 as amended. 3 The present settlement is intended to apply only to those employees bound by the SACS Award and does not apply to employees of constitutional corporations covered under the Federal system. Dated: 13 December 2007 4 On 20 December 2007 I made an Interim Order which gave effect to this agreement. I am now giving reasons for that Decision. 5 I note the practicality of the terms agreed, the general agreement being one which eliminates the administrative burden that was the concern of the parties earlier expressed and which brings a sensible outcome. I note also that the union will discontinue the remainder of its claims in this matter. 6 I note particularly the third point of agreement which is that the present settlement is intended to apply only to those employees bound by the SACS award. This, of course, is all that it can do. The variation does not and cannot apply to employees of constitutional corporations covered under the Federal system. It is my view that no further words need to be entered into the award document to that effect because of the formal terms of the agreement reached between the parties and because of the commitment placed on record by the union's representative to that effect. 7 The nominal term of the Award has not expired. The variation which I have made is permitted pursuant to s17(3)(a) of the Industrial Relations Act 1996. ORDERS I confirm the Orders made by the Commission on 20 December 2007 which were in the following terms: 1. The Social and Community Services Employees (State) Award is varied as follows: (1) Insert a new paragraph (d) immediately after current paragraph (c) of sub-clause 22.1 of the Award made on 3 March 2006 as follows: "(d) Employees shall be paid in accordance with Table 3A of Part IX of the Award from the first full pay period to commence on or after 1 January 2008.": (2) Re-letter current paragraph "(d)" of sub-clause 22.1 of the Award made on 3 march 2006 as "(e)". (3) Insert a new subclause 22.4 immediately after current sub-clause 22.3 of the Award made on 3 March 2006 as follows: "22.4 Notwithstanding sub-clause 22.3, employees shall be paid a one off payment of $23.50 on the first full pay period to commence on or after 1 January 2008 subject to: (a) entitlement to the payment is confined to full-time and part-time employees in employment on 1 January 2008 or casual employees engaged between 1 July 2007 and 31 December 2007 on a regular and systematic basis; (b) for part-time employees the entitlement is determined on a pro rata basis vis-à-vis a full-time employee based on the number of hours the part-time worker worked or the hours for which they were paid in first pay period in December 2007; (c) an employer may delay the payment under this subclause to not later than 1 July 2008 on the basis of incapacity to pay; (d) the payment may be absorbed into any over-award payments received by any employee between 1 July 2007 and 31 December 2007." (4) Insert a new Table 3A immediately after current Table 3 in Part IX - Monetary Rates of the Award made on 3 March 2006 as follows: "Table 3A - Rages of Pay effective first full pay period to commence on or after 1 January 2008. Community Services Worker Grade 1 Per AnnumWeeklyHourly* $$$ Year 128,281542.4114.27 Year 229,353562.9714.82 Year 330,424583.5115.36 Community Services Worker Grade 2 Per AnnumWeeklyHourly $$$ Year 132,352620.4816.33 Year 233.745647.2017.03 Year 335,137673.9017.73 Year 436,637702.6718.49 Community Services Worker Grade 3 Per AnnumWeeklyHourly $$$ Year 137,936727.5819.15 Year 239,370755.0819.87 Year 340,805782.6020.59 Year 442,239810.1121.32 Year 543,785839.7622.10 Community Services Worker Grade 4 Per AnnumWeeklyHourly $$$ Year 144,997863.0022.71 Year 246,320888.3823.38 Year 347,645913.7924.05 Year 448,969939.1824.72 Community Services Worker Grade 5 Per AnnumWeeklyHourly $$$ Year 150,293964.5825.38 Year 252,4991,006.8926.50 Community Services Worker Grade 6 Per AnnumWeeklyHourly $$$ Year 156,9141,091.5628.73 Year 260,2241,155.0430.40 (5) Delete current Table 4 of Part IX - Monetary Rates of the Award made on 3 March 2006 and insert in lieu thereof the following: "Table 4 - Rates of Pay effective first full pay period to commence on or after 1 July 2008. Community Services Worker Grade 1 Per AnnumWeeklyHourly $$$ Year 129,271561.3914.77 Year 230.380582.6615.33 Year 331.489603.9315.89 Community Services Worker Grade 2 Per AnnumWeeklyHourly $$$ Year 1 33,484642.1916.90 Year 234,926669.8517.63 Year 336,367697.4918.36 Year 437,919727.2519.14 Community Services Worker Grade 3 Per AnnumWeeklyHourly $$$ Year 139,264753.0519.82 Year 240,748781.5120.57 Year 342,233809.9921.32 Year 443,717838.4522.06 Year 545,317869.1422.87 Community Services Worker Grade 4 Per AnnumWeeklyHourly $$$ Year 146,572893.2123.51 Year 247,941919.4724.20 Year 349,313945.7824.89 Year 450,683972.0625.58 Community Services Worker Grade 5 Per AnnumWeeklyHourly $$$ Year 152,053998.3326.27 Year 254,3361,042.1227.42 Community Services Worker Grade 6 Per AnnumWeeklyHourly Year 158,9061,129.7729.73 Year 262,3321,195.4731.46 (6) Delete current Table 5 of Part IX - Monetary Rates of the Award made on 3 March 2006 and insert in lieu thereof the following: "Table 5 - Allowances Amount ffpp*1 January Amount ffpp Item No. Clause No. Brief Description Amount ffpp*3 March 2006 Amount ffpp* 1 July 2006 2008 1 July 2008 *First full pay period to commence on or after 1 31.1 First Aid 7.72 per week 7.99 per week 8.27 per week 8.56 per week 1.54 per day 1.60 per day 1.66 per day 1.72 per day 2 32 On Call 16.00 per day 16.56 per day 17.14 per day 17.74 per day 3 33 Motor Vehicle Allowance 0.51 per km 0.53 per km 0.55 per km 0.57 per km 2. This variation shall take effect on and from 20 December 2007. 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.