Industrial Relations Commission of New South Wales CITATION: Australian Workers Union v. Wollongong Sportsground Trust [2007] NSWIRComm 1063 NOTIFIER Australian Workers Union PARTIES: RESPONDENT Wollongong Sportsground Trust FILE NUMBER(S): IRC 1496 of 2007 CORAM: Connor C CATCHWORDS: industrial dispute - negotiations for a new State enterprise award - jurisdiction to make an award in dispute proceedings - award made by consent of the parties - retrospective operation of award LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act, 2005 CASES CITED: Olympic Games Attendance Bonus Case - unreported HEARING DATES: 03/10/2007 EXTEMPORE JUDGMENT DATE : 3 October 2007 NOTIFIER Andrew Gorman Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Stuart Barnes Wollongong Sportsground Trust DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 3 October, 2007 Matter No IRC 1496 of 2007 Australian Workers Union and Wollongong Sportsground Trust Notification of an industrial dispute under S.130 of the Industrial Relations Act, 1996 re negotiations for a new State enterprise award DECISION [2007] NSWIRComm 1063 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Australian Workers' Union has lodged a notification of an industrial dispute with the Wollongong Sportsground Trust. The AWU and the Trust have been involved in negotiations for a new Wollongong Sportsground Trust Award to cover certain employees of the Trust, viz: * events staff: ushers, crowd control, general attendants, ticket sellers, customer service assistants and sales assistants; * ground, building and technical staff: labourers, cleaners, general grounds assistants, trade assistants, stage hands and drivers; and * non-executive administration: receptionists, basic clerical work, maintenance of records and basic client liaison. Because of problems being experienced by the AWU and the Trust in finalising those negotiations, the AWU sought the assistance of the Commission with the S.130 notification. The matter was allocated to me and I set it down for a conference in Sydney on Tuesday, 25 September, 2007 (which was vacated at the request of the parties) and for a mention in the Commission's premises at 90 Crown Street, Wollongong on Wednesday, 3 October, 2007. 2 By that time the negotiations had reached a position where the parties had, in fact, reached an agreed position and the result was a new Wollongong Sportsground Trust Award - the Wollongong Sportsground Trust and the Australian Workers Union Award - to replace the existing State enterprise award bearing that name. At the request of the parties - Mr Gorman representing the AWU and Mr Barnes representing the Trust - I converted the mention into a hearing to bring this matter to a conclusion. I issued the certificate of attempted conciliation required by S.135(2) and lodged it in the prescribed manner. 3 I am authorised under S.136(1)(b) of the State IR Act to make or vary a State award. But before I do so, it is necessary for me to issue the certificates of attempted conciliation required by with S.135(2) and lodge it in the prescribed manner to permit the matter to proceed into arbitration. The provisions of S.136(1)(b) can come into effect only in the arbitration phase of the proceedings and I do not enter that phase until I am satisfied that the conciliation phase has been exhausted and I have issued the S.135(2) certificate of attempted conciliation and lodged it in the prescribed manner. Arbitration suggests argument between the parties and there is now really none in this case. The parties had actually reached agreement in the conciliation stage of this dispute before it came before me for the formal application to make the State enterprise award. Indeed, I commend the parties on the constructive manner in which they have dealt with this matter. 4 But as I indicated in my unreported decision of Thursday, 31 August, 2000 in the Olympic Games Attendance Bonus Case [Matter No. IRC 4284 of 2000 at p. 5], I issue the certificate of attempted conciliation required under S.135(2) on that occasion because, without it: "…the matter may not be resolved to the satisfaction of the parties. The conciliation phase has therefore been exhausted. In effect, whilst the parties have conciliated the dispute to a satisfactory conclusion, the structure of 1996 Act has defeated them and brought them to an argument, albeit something of a legal fiction, to put their agreement into effect. To that extent conciliation has failed to resolve the dispute and, consequently, the certificate of attempted conciliation may issue to permit an award to be made…" It is a clear object of the State IR Act to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments [S.3(e)] and for me to act as quickly as is practicable [S.162(2)(a)] and according to the substantial merits of the case without regard to technicalities or legal form [S.163(1)(c)]. I propose to do so on this occasion. 5 The proposed Wollongong Sportsground Trust Award extends to cover employees of the Trust engaged in the operation, maintenance and non-executive administration of grounds and facilities operated and/or controlled by the Trust and, subject to any other State award otherwise having common rule application, employees of sub-contractors engaged by the Trust in that work. In that respect Clause 3, Application, of the proposed Wollongong Sportsground Trust Award reads as follows: "(a) This award is binding on the Wollongong Sportsground Trust, employees of the Trust and the Australian Workers Union (New South Wales Branch) representing their members, employees of the Trust, in respect of employment conditions and rates of pay for the Trust employees engaged in the operation, maintenance and non-executive administration of grounds and facilities operated and/or controlled by the Wollongong Sportsground Trust. (b) This award shall equally apply to any sub-contracted organisation or individual employing persons who would otherwise have been employed by the Trust, other than organisations or individuals who either are party to, or obliged by common rule application, to observe awards or agreements of the Australian Liquor, Hospitality and Miscellaneous Union in regards to cleaning, security, childcare or catering services or otherwise excluded by the operation of State or Federal law ." 6 The limitations which might otherwise apply for the making or variation of some State awards by virtue of S.16(1) of the 2005 Federal Workplace Relations Amendment (Work Choices) Act do not arise for this State enterprise award. The Trust is not a constitutional corporation, ie a foreign, trading or financial corporation for the purposes of S.51(xx) of the Commonwealth Constitution on which the jurisdiction of Work Choices relies. It is therefore open to it to cover its employees with a new State instrument if it choses to do so. 7 As far as Clause 3(b) is concerned, it has been a feature of past Wollongong Sportsground Trust Awards for some considerable time. It is a legitimate provision to ensure consistency in employment conditions for the Trust's operations but an amendment is now required in the light of Work Choices insofar as some sub-contractors that may be engaged by the Trust from time to time may be S.51(xx) corporations. They would thereby fall outside what the Wollongong Sportsground Trust Award may validly cover. The words in italics above have been inserted in Clause 3(b) to address that issue. 8 The proposed new Wollongong Sportsground Trust Award is made by consent of the parties. Among other things, it provides for two separate 4% increases to rates of pay for the employees at twelve monthly intervals. It shall remain in force for a period of two years. It therefore complies with S.16(2) of the State IR Act by which the nominal term of State awards may extend within the range of one year and three years. It contains the mandatory dispute settlement procedure [Clause 29, Dispute Procedure] required by S.14. I propose to make the new Wollongong Sportsground Trust Award in terms of the application lodged by the Trust in these proceedings as amended [Exhibit 1]. 9 It is the parties wish, and the agreement reached between the AWU and the Trust, that the proposed new Wollongong Sportsground Trust Award apply retrospectively from the beginning of the first pay period to commence on or after Saturday, 1 September, 2007. However, the S.130 notification by the AWU, initiating these proceedings, was only lodged by the AWU on Thursday, 13 September, 2007 and retrospectivity for the proposed new Wollongong Sportsground Trust Award is restricted to that date by virtue of S.15(3) of the State IR Act. The Wollongong Sportsground Trust Award shall therefore operate effective from the beginning of the first pay period to commence on or after Thursday, 13 September, 2007. The previous Wollongong Sportsground Trust Award, which it replaces, will be rescinded from that date. Any retrospectivity for the new Wollongong Sportsground Trust Award beyond that date may be achieved by administrative action between the parties. 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.