Industrial Relations Commission of New South Wales CITATION: Dental Assistants and Secretaries (State) Award [2008] NSWIRComm 56 APPLICANT NSW Dental Assistants' Association Australian Workers' Union, New South Wales PARTIES: RESPONDENTS Australian Dental Association (NSW Branch) Australian Federation of Employers and Industries FILE NUMBER(S): IRC2142 of 2007 CORAM: Sams DP; Grayson DP; Connor C Application to vary Award - s 17 and s 22 of the Act - reduced hours - 38 hour week - conciliation before the Commission - consent of the parties - increased flexibilities agreed to - cost minimised. CATCHWORDS: Held; State Wage Case Principles - nature of the industry - Commission satisfied that cost is minimal - 38 hour week granted - Award varied. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: State Wage Case 2007 (2007) 163 IR 253 HEARING DATES: 20 March 2008 DATE OF JUDGMENT: 20 March 2008 APPLICANT Ms Z Angus NSW Dental Assistants' Association LEGAL REPRESENTATIVES: RESPONDENTS Mr B Ferguson Australian Federation of Employers and Industries Mr D Wilkinson Australian Dental Association (NSW Branch) JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP GRAYSON DP CONNOR C 20 March, 2008 Matter No IRC07/2142 Dental Assistants and Secretaries (State) Award Application by the NSW Dental Assistants' Association for variation re hours DECISION [2008] NSWIRComm 56 1 This is an application, pursuant to s 17 of the Industrial Relations Act 1996 ('the Act'), for variation of the Dental Assistants and Secretaries (State) Award ('the Award') seeking to reduce the ordinary hours of work for employees from 40 hours to an average of 38 hours per week. 2 The application was first listed before Walton J on 14 December 2007, and on two subsequent occasions before his Honour. The application was referred to Sams DP for conciliation and at conciliation proceedings on 11 March 2008, agreement was reached on an appropriate variation to the Award to reflect the introduction of a 38 hour week. 3 The application was subsequently referred to the Full Bench of the Commission pursuant to s 22(3) of the Act which requires that "the ordinary working hours of an employee cannot be reduced by an award unless the reduction is made by a Full Bench of the Commission". 4 At the proceedings before the Full Bench today Ms Z Angus appeared for the NSW Dental Assistants' Association, Mr B Ferguson appeared for the Australian Federation of Employers and Industries and Mr D Wilkinson appeared for the Australian Dental Association (NSW Branch). 5 Ms Angus said that the application had been lodged on 30 November 2007, and prior to, and since that date, there had been extensive negotiations between the parties resulting in an agreement being reached in conciliation proceedings on 11 March 2008. 6 Ms Angus tendered an amended draft variation to the Award (Exhibit 1) which included a provision for employees who are required to work for short periods, on a limited number of evenings, to be paid at ordinary rates, rather than overtime rates. She submitted that this concession represented a cost saving for employers and thereby satisfied the State Wage Case Principles (see State Wage Case 2007 (2007)163 IR 253) that any application for a 38 hour week is to have minimal cost implications. 7 Both Mr Ferguson and Mr Wilkinson supported the proposed variation to the Award. 8 In determining this application, the Full Bench is required to have regard to the 2007 State Wage Case Wage Fixing Principles, in particular Principle Seven dealing with standard hours: 7. Standard Hours In approving any application to reduce the standard hours to 38 per week, the Commission will satisfy itself that the cost impact is minimised. Claims for reduction in standard weekly hours below 38 will not be allowed. 9 Having regard for the nature of the industry, the increased flexibility arrangements agreed to by the Union and the consent of the parties, we are satisfied that the cost of introducing a 38 hour week into this Award will be minimal. Accordingly, we are prepared to approve the variation proposed by the parties in Exhibit 1, noting that there is agreement that the terms of the variation shall not take effect until the first pay period on or after 6 June 2008. 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.