Industrial Relations Commission of New South Wales CITATION: Plumbers and Gasfitters (State) Award [2009] NSWIRComm 66 APPLICANT Master Plumbers and Mechanical Contractors' Association of New South Wales RESPONDENTS Australian Business Industrial PARTIES: Australian Federation of Employers and Industries Director of Public Employment Local Government Association of New South Wales The Australian Industry Group, New South Wales Branch The Master Builders' Association of New South Wales Newcastle Master Builders' Association NSW Plumbers and Gasfitters Employees' Union FILE NUMBER(S): IRC 2313 of 2008 CORAM: Sams DP CATCHWORDS: AWARD - plumbing industry - application to vary award - award not compliant with National Building Industry Code - no provisions for piecework, casual employment or inclement weather - flexibility - Agreement between Commonwealth and States re building industry code compliance - parties reach agreement - State Wage Case principles - amended application - award varied by consent. LEGISLATION CITED: Industrial Relations Act 1996 State Wage Case 2008 [2008] NSWIRComm 122 CASES CITED: AWARD: Plumbers & Gasfitters (State) Award 313 IG 709 HEARING DATES: 18 December 2008; 24 February 2009; 24 March 2009; 7 May 2009 DATE OF JUDGMENT: 7 May 2009 APPLICANT Mr J Elder Master Plumbers and Mechanical Contractors' Association of New South Wales RESPONDENTS Mr M Whitbread Australian Business Industrial Ms S Bryant Australian Federation of Employers and Industries LEGAL REPRESENTATIVES: Mr C Houston Director of Public Employment Ms N Salameh Local Government Association of New South Wales Mr M Skinner The Master Builders' Association of New South Wales Newcastle Master Builders' Association Mr S McCarney NSW Plumbers and Gasfitters Employees' Union JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 7 May, 2009 Matter No IRC 2313 of 2008 Plumbers and Gasfitters (State) Award Application by The Master Plumbers & Mechanical Contractors' Association of New South Wales for variation re conditions of employment DECISION [2009] NSWIRComm 66 1 This is an application, pursuant to s 17 of the Industrial Relations Act 1996 ('the Act'), lodged on 11 December 2008, by the Master Plumbers & Mechanical Contractors' Association of New South Wales ('the applicant') to vary the Plumbers & Gasfitters (State) Award 313 IG 709 ('the Award'). 2 The original purpose of the application, as expressed in the Grounds and Reasons accompanying it, was to vary the Award in a number of respects to ensure that it was compliant with the National Code of Practice for the Construction Industry ('the Code') and the Australian Government Implementation Guidelines ('the Guidelines'). As was explained by Mr J Elder, for the applicant, at the first listing of the matter, the fact that the Award was not Code-compliant prevents employer respondents to the Award from tendering for Federal Government projects. The application also seeks new award provisions for casual employment and inclement weather as the Award is silent on both these issues. The application also seeks a more flexible 38 hour week arrangement. 3 At the listing of the matter on 18 December 2008, a number of other employer organisations were represented and gave 'in principle' support to the application. They were the Australian Federation of Employers and Industries, Australian Business Industrial, Master Builders' Association of New South Wales and the Local Government Association of New South Wales. The Union party (NSW Plumbers and Gasfitters Employees' Union) was not represented, but Mr Elder said negotiations had been held with the Union, although the initial discussions proved unsuccessful in resolving the Union's objections to the application. He said it was the Union's view that the application should not be dealt with until after the Federal Award Modernisation Process had been completed for the National Building Industry awards. The application was adjourned until 24 February 2009, to allow the parties a further opportunity to discuss the matter. 4 On the next occasion, Mr Elder gave further details of the Award's non-Code compliance - it has no casual or piecework provisions and the disputes settlement clause was non-compliant. After consulting with the federal Workplace Authority, Mr Elder had amended the application and he now tendered an amended schedule of variations. He said that apart from the change to the Dispute Settlement Clause, the Union opposed all the other variations. However, all the employer organisations supported the amended application. Mr S McCarney, Secretary of the Union, said that the Union had now written to the Department of Education, Employment and Workplace Relations asking it to interpret the Award in terms of its Code compliance. However, no reply had been received. By consent, the matter was again adjourned to allow the advice from the relevant authorities to be received and considered. 5 A further report back was listed on 24 March 2009. On that occasion, the Commission was advised of a recent announcement by the Hon Julia Gillard, Deputy Prime Minister, and Minister for Industrial Relations in late February, that the Commonwealth and the States had agreed that all State industrial instruments and obligations would be considered as Code and Guidelines compliant, including where they may be in conflict with elements of the Code and Guidelines. Obviously, this announcement introduced a new, and possibly crucial factor into the parties' negotiations and the matter was further adjourned to allow time to consider the position. 6 At the applicant's request, the matter was re-listed on 7 May 2009, and prior to the listing the Commission received correspondence from the applicant advising that a further amended schedule had been agreed to by the Union and which now sought: § Deletion of clauses concerned with Piecework and Settlement of Disputes. The purpose for seeking such changes was related to co-compliance requirements which no longer exist following the formal declaration by the Hon Julia Gillard, Deputy Prime Minister, that "the Code and Guidelines will not be seen to override state and territory industrial instruments". § Additional Clause 3A which describes the types of employment for tradesmen and provides for Casual Employment. § Deletion of current clauses 4(i)(f) 4(ii) related to mid-day meal and smoko breaks and the insertion in lieu thereof clauses related to exemptions for employers of less than 15 employees and provisions for mid-day meals and smoko breaks. § Additional Clause 6A that provides for procedures related to Inclement Weather. 7 The Union confirmed its agreement to the changes in correspondence dated 29 April 2009. The other employer parties, now including the Director of Public Employment, consented to the variation to the Award. 8 The Commission is satisfied that the proposed variation to the Award meets all of the requirements of the Commission's State Wage Case Principles (State Wage Case 2008 [2008] NSWIRComm 122) and is otherwise compliant with all of the relevant provisions of the Act. The variation introduces new and flexible provisions and must be regarded as having significant industrial merit. 9 Accordingly, pursuant to s 17(3)(a) of the Act, the Commission varies the Plumbers and Gasfitters (State) Award in terms of amended Schedule A of 29 April 2009 (with today's typographical corrections). The variation shall take effect from 7 May 2009, and remain in force for a period of twelve months thereafter. Peter J Sams, AM Deputy President 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.