Industrial Relations Commission of New South Wales CITATION: Social and Community Services Employees (State) Award, Re [2006] NSWIRComm 87 APPLICANT (IRC2003/4380) Australian Services Union of New South Wales APPLICANT (IRC2003/4679) Employers First PARTIES: RESPONDENTS Employers First (IRC2003/4380) Aged Care Association Australia - NSW Australian Business Industrial Australian Services Union of N.S.W. Catholic Commission for Employment Relations Jobs Australia Limited Australian Services Union of New South Wales (IRC2003/4679) FILE NUMBER(S): IRC 4380 and 4679 of 2003 CORAM: Wright J President; Grayson DP; McLeay C CATCHWORDS: Award - Special case - Work value changes - Consent reached - Held, Special case and work value changes made out - Leave reserved on two issues - New award made. HEARING DATES: 03/03/2006 EXTEMPORE JUDGMENT DATE: 03/03/2006 APPLICANT (IRC2003/4380) Mr R Reitano of counsel Australian Services Union of N.S.W. Solicitors: Mr Philip Pasfield Slater & Gordon Lawyers APPLICANT (IRC2003/4679) Mr T McDonald and Mr S Benson of counsel Employers First LEGAL REPRESENTATIVES: Aged & Community Services Association of NSW & ACT Incorporated OTHER RESPONDENTS Ms M McDonnell Australian Business Industrial Aged Care Association of Australia NSW Mr D Klepac Catholic Commission for Employment Relations Mr K Godfrey Jobs Australia Limited JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Grayson DP McLeay C Friday 3 March 2006 Matter No IRC 4380 of 2003 SOCIAL AND COMMUNITY SERVICES EMPLOYEES (STATE) AWARD Application by Australian Services Union of NSW for variation re variations of existing clauses of the award Matter No. IRC 4679 of 2003 SOCIAL AND COMMUNITY SERVICES EMPLOYEES (STATE) AWARD Application by Employers First for a new award DECISION OF THE COMMISSION [2006] NSWIRComm 87 (ex tempore) 1 The proceedings before the Full Bench today involve an application by the Australian Services Union of NSW to vary the Social and Community Services Employees (State) Award and an application by Employers First for the making of a new Social and Community Services Employees (State) Award. 2 The proceedings have been, since their respective lodgement on 6 and 22 August 2003, the subject of significant conciliation by a member of the Full Bench, the subject of major amended applications filed in late 2005 and, at one stage, substantial disagreement as to the course the proceedings should follow. Hearing dates were accordingly fixed on 7 February 2006 to take place on 1, 2, 3 and 16 March 2006. 3 The Full Bench was however advised on Friday 17 February 2006 that agreement had been substantially reached in the proceedings and, at the subsequent directions hearing on 21 February, today's hearing was fixed for the conclusion of the matters with the other hearing dates being vacated. 4 The agreement between the parties is set out in Exhibit 8 and involves the following components: 1. This agreement settles all matters arising out of IRC Nos 4380 and 4679 of 2003 other than matters related to Levels 7 and 8 of the classification provisions and associated wages as set out in IRC No 4380. 2. The rates of pay and allowances in the SACS Award shall be increased by 3.5% from the first full pay period on or after 1 July 2006, 1 July 2007, 1 July 2008. 3. A clause shall be inserted into the Award dealing with future increases in terms attached. 4. Employers first shall discontinue its application IRC No 4679 of 2003. 5. The ASU shall amend its application so as to remove all elements other than those related to the classification structure as it relates to levels 7 and 8 and related wages, and shall not make further amendments to that application to include further matters. 6. Clause 19 of the Award shall be varied in accord with the attached documentation. In addition an appendix shall be included in the award. Such an appendix will contain the materials referred to as the "Competencies". 7. The parties are agreed that the Award shall be varied so as to provide that no employee shall be regraded so as to disadvantage any employee as a result of the award being varied as set out in 6 above. 8. The Award shall have a term of three years. 9. The operative date of the Award shall be 1 March 2006. 10. The ASU has indicated that it will not progress its claim for the insertion of grades 7 and 8 before 1 September 2006. Employers First remains firmly opposed to that claim CLAUSE REFERRED TO IN POINT 3 ABOVE 21.2 This Award is made by consent as a settlement of the claims made by the Union in Matter No 4380 of 2003 and Employers First in Matter No 4679 of 2003. 5 As to Exhibit 8, three matters should be noted. One, the document referred to in para 6 was not attached to the document tendered. Its contents is however reflected in the award that the Commission is asked to make today. Two, the operative date referred to in para 9 is to be the beginning of the first pay period to commence on or after today. Three, there is to be leave reserved in the award to vary it in respect of the Secure Employment Test Case. 6 The union in advancing its claim has substantially relied on two matters. First, the decision of the Full Bench of November 2001 in Re Social and Community Services Employees (State) Award (2001) 113 IR 119. Second, the evidence contained in the statement of Ms Sally McManus dated 2 March 2006. Ms McManus is the Secretary of the ASU and has held that position since August 2005. Prior to that time she held various other senior positions with the ASU since 1994 and has been associated with the industrial affairs of ASU members in the social and community sector since that time 7 Ms McManus' statement attests to significant changes in the work of those employed in the industry that have occurred since the Full Bench decision and which are expected to occur during the life of the proposed award. 8 Counsel for the ASU took the Full Bench in detail to relevant elements of the 2001 Full Bench decision and the changes in work (and, we accept, changes in work value) enumerated in Ms McManus' evidence, which we note was uncontested. We accept that there have been, and will be during the course of the proposed award, substantial changes in the work value of persons employed in this industry. In that context it is relevant to note that the 2001 Full Bench decision made clear that the rates of pay and conditions of employment awarded then involved the taking of further steps "aimed at bringing this award into line with general standards but not to complete that process in these proceedings": see Re Social and Community Services Employees (State) Award (2001) 113 IR 119 at 197 (para [307]). The award variations made since 2001 have not completed the process set in train at that time. 9 We accordingly conclude that the claim made, the agreement reached and the proposed award may be considered as involving the establishment of a special case within the special case principle. The special case has been established, in part, because of the work value changes which we have concluded have been made out. We have therefore decided to grant the application for the making of the consent award and to otherwise implement the agreement between the parties. We do not consider that the qualification expressed on behalf of ACROD (NSW) Limited, in its submissions today, affects the substance of the significant agreement reached between the parties. 10 The Commission grants leave to Employers First to discontinue its application in Matter No IRC 4679 of 2003 and makes a new Social and Community Services Employees (State) Award 2006 in terms of Exhibit 9 as amended at p 1, 15, 42, 43 and 46 during today's proceedings. Those changes refer to the award commencing from the beginning of the first pay period to commence on or after 3 March 2006 rather than 1 March 2006 - if, as is possible, there are other similar changes required to the document, they shall be attended to prior to publication of the award. 11 The award made shall, as set out in clause 59.8 thereof, commence on the first pay period to commence on or after 3 March 2006 and shall remain in force for a period of three years. The award made rescinds and replaces the Social and Community Services Employees (State) Award 2001 published on 10 May 2002. [The parties then made certain submissions as to leave reserved] 12 Although not expressly set out in the award, there is agreement between the parties as to two leave reserved matters. There is leave reserved in those respects notwithstanding what is expressly set out in the award. Those two matters are as follows: first, as noted earlier in this decision, in relation to the Secure Employment Test Case; that matter, relating to a Test Case decision, does not require leave reserved in any event. The second matter arises from para 10 of the agreement expressed in Exhibit 8, the terms of which have been set out earlier. That paragraph is in the following terms: "The ASU has indicated that it will not progress its claim for the insertion of grades 7 and 8 before 1 September 2006. Employers First remains firmly opposed to that claim." 13 Understandably, the parties accept that at least implicitly, and probably expressly, that provision provides liberty to apply to the ASU in respect of the relevant subject matter provided it is not exercised before the date specified. 14 We thank the parties again for their assistance this morning and, subject to the formal of settlement of the minutes of the new award, these proceedings are now concluded. _______________ 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.