Industrial Relations Commission of New South Wales CITATION: Hunter Valley Training Company (Scaffolding Trainees) Training (State) Award [2009] NSWIRComm 1021 REPRESENTATIVE OF EMPLOYEES Australian Workers Union PARTIES: EMPLOYER Hunter Valley Training Company FILE NUMBER(S): IRC 1569 of 2008 CORAM: Connor C CATCHWORDS: award review - training award - trading corporation - child protection - award review completed Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations (Child Employment) Act 2006 Federal Workplace Relations Amendment (Work Choices) Act 2005 Child Protection Principles Case (2007) 163 IR 41 CASES CITED: Endeavour Coal Pty Limited v. Construction, Forestry, Mining and Energy Union (2007) 173 IR 276 New South Wales v. Commonwealth of Australia (2006) 156 IR 1 HEARING DATES: 20/04/2009 EXTEMPORE JUDGMENT DATE : 20 April 2009 REPRESENTATIVE OF EMPLOYEES Wayne Phillips Australian Workers Union LEGAL REPRESENTATIVES: EMPLOYER Renata Payne Hunter Valley Training Company DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Monday, 20 April, 2009 Matter No IRC 1569 of 2008 Hunter Valley Training Company (Scaffolding Trainees) Training (State) Award Notice of award review under S.19 of the Industrial Relations Act, 1996 DECISION [2009] NSWIRComm 1021 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 Hunter Valley Training Company (Scaffolding Trainees) Training Award. In terms of S.19(1): "The Commission is required to review each award before September, 2001 and subsequently at least once in every three years." 2 In accordance with Practice Direction No.13 (Clause 4) the matter was the subject of a call over before me on Monday, 10 November, 2008 and I adjourned the proceedings for mentions on Tuesday, 16 December, 2008, Tuesday, 10 February, 2009 and Tuesday, 3 March, 2009. Ultimately, I set the matter down for a hearing on Monday, 20 April, 2009. All proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. 3 In those proceedings Mr Phillips represented the Australian Workers Union. There was no appearance in the proceedings by the Hunter Valley Training Company, although on Friday, 31 October, 2008 and again on Tuesday, 20 January, 2008 Ms Payne, representing it, had written to me. In that correspondence she had suggested that, in the light of the provisions of the 2005 Federal Workplace Relations Amendment (Work Choices) Act, the S.19 review no longer applied to the Hunter Valley Training Company Award. It has also taken the view that it is a redundant State award but that view is not shared by Mr Phillips whose investigations have satisfied him that it remains relevant for scaffolding trainees and the AWU wishes to preserve it. And the situation concerning this S.19 review is somewhat more complex than the correspondence from the Hunter Valley Training Company would suggest. 4 Firstly, the Hunter Valley Training Company claims in its correspondence, no doubt accurately, that it is a corporation within the meaning of S.51(xx) of the Commonwealth Constitution, ie a trading, financial or foreign corporation. As such, it asserts in its letters that it ceases to be a State instrument and is, in fact, converted by Work Choices into a "notional agreement preserving a State award" (or a NAPSA). 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. 5 However, by a 2006 amendment to the 1996 State IR Act [S.44C], State enterprise awards covering S.51(xx) corporations have been converted into enterprise agreements and they do not become NAPSA's but "preserved State agreements [PSA's] under 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. 6 But, in fact, as I see the situation, the Hunter Valley Training Company Award is neither a NAPSA nor a PSA. It is a training award, essentially for junior employees. Such employees fall outside the scope of Work Choices and 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/or any relevant State industrial legislation. 7 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..." 8 Therefore, State training awards remain binding on S.51(xx) corporations as State instruments, at least to the extent of their coverage of junior employees. The Hunter Valley Training Company Award provides a proper mechanism by which such protection may be provided in one area of junior employment. The upshot is that it would remain a State award to which the S.19 review procedure continues to apply. 9 I am aware that in Endeavour Coal Pty Limited v. Construction, Forestry, Mining and Energy Union (2007) 173 IR 276 the Full Bench of the Federal Court of Australia (Ryan, Moore and Mansfield JJ) held that Work Choices, providing as it does, paramountcy of Federal awards over those of State tribunals as far as employment within S.51(xx) corporations were concerned, meant that the award-making powers of the State Commission in relation to such S.51(xx) corporations were proscribed (in that case for long service leave). It was the view of the Full Bench in Endeavour Coal Pty Limited v. Construction, Forestry, Mining and Energy Union that the issue of long service leave was reserved only to the State legislature (as distinct from awards of the State Commission). But I do not regard the protection afforded to children by the Child Employment Act as caught by the same restrictions. 10 In New South Wales, long service leave has in the past been predominantly a creature of statute - the 1955 Long Service Leave Act: child protection is not. The protection afforded to children in this State has historically been dependent upon State awards - and the Child Protection Act reinforces that protection. The only effective way for the Child Protection Act to operate is through State awards applicable to junior employees and to permit those State awards to be made and varied from time to time, as required. The Hunter Valley Training Company Award is such a State award. 11 Mr Phillips has argued that Hunter Valley Training Company Award should be preserved in its current form and, in the circumstances, and in the absence of any substantive argument to the contrary from the Hunter Valley Training Company, I propose to accede to Mr Phillips' request and preserve Hunter Valley Training Company Award in its current form and note the S.19 award review process as concluded on that basis. 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.