Industrial Relations Commission of New South Wales CITATION: Royal Flying Doctor Service of Australia (South Eastern Section) Nursing Staff (State) Award [2008] NSWIRComm 1016 REPRESENTATIVE OF EMPLOYEES New South Wales Nurses Association PARTIES: EMPLOYER Royal Flying Doctor Service of Australia (South Eastern Section) FILE NUMBER(S): IRC 1614 of 2007 CORAM: Connor C CATCHWORDS: award review - Royal Flying Doctor Service - status of employer - procedure for review of award LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 Allan v. Lifeline Newcastle and Hunter - unreported CASES CITED: Australian Red Cross Society Case (1991) 27 FCR 310 Review of Awards Case (1998) 85 IR 38 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 HEARING DATES: 31/01/2008 EXTEMPORE JUDGMENT DATE : 31 January 2008 REPRESENTATIVE OF EMPLOYEES Katherine Wild New South Wales Nurses Association LEGAL REPRESENTATIVES: REPRESENTATIVE OF EMPLOYER Lawrence Chapman Royal Flying Doctor Service of Australia (South Eastern Section) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 31 January, 2008 Matter No IRC 1614 of 2007 Royal Flying Doctor Service of Australia (South Eastern Section) Nursing Staff (State) Award Notice of award review pursuant to S.19 of the Industrial Relations Act, 1996 DECISION [2008] NSWIRComm 1016 1 The Royal Flying Doctor Service of Australia (South Eastern Section) Nursing Staff (State) Award has been referred to me for review pursuant to S.19(1) of the 1996 Industrial Relations Act: "The Commission is required to review each award before September, 2001 and subsequently at least once in every three years." The Registry has set down a call over of the matter on Friday, 23 November, 2007 in accordance with Practice Direction No.13 [Clause 4] and adjourned the proceedings for mentions on Friday, 7 December, 2007 and Thursday, 31 January, 2008. Ms Wild represented the New South Wales Nurses Association in the proceedings. There was no appearance in the proceedings by the Royal Flying Doctor Service. I nevertheless spoke to Mr Chapman , its representative in Broken Hill, on the telephone concerning the proceedings and obtained its views on the matter to the extent that I was satisfied that I may effectively convert the proceedings on Thursday, 31 January, 2008 into a hearing. 2 The purpose of the review process is to modernise and consolidate State awards and, where appropriate, rescind obsolete awards in accordance with the principles set out by the Full Bench of the Commission (Wright J - President, Hungerford and Schmidt JJ, Sams DP and Redman C) in the Review of Awards Case (1998) 85 IR 38 and Practice Direction No.13 [S.19(2)]. Limitations now flow from the changed industrial climate that has emerged from the 2005 Federal Workplace Relations Amendment (Work Choices) Act in that employers who are trading, financial or foreign corporations within the meaning of S.51(xx) of the Commonwealth Constitution are, with certain exceptions, excluded from the State industrial jurisdiction [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. 3 But by a 2006 amendment to the State IR Act - Part 8A of Schedule 4 [S.44C] - all State consent enterprise awards for such S.51(xx) corporations which would otherwise be bound under the Work Choices have been converted into enterprise agreements and, as such, become preserved State agreements [PSA's] for the purpose of 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..." Therefore, any State enterprise award covering employees of such a S.51(xx) corporation would no longer be a State award and, consequently, would fall outside the regime for review under S.19. To ensure consistency with such matters, I am directed to return any notice of review under S.19 involving an enterprise to which S.44C applies to be considered together. But I do not believe that applies to the current State award under review in these proceedings. 4 Whilst the Flying Doctor Service is incorporated, I regard it essentially to be, as the name implies, a service, particularly when the State award before me covers the nursing profession, which centres on service, not trading. That is, in fact, the view of both the Nurses Association and the Royal Flying Doctor Service. I share that view. I am aware that there remains considerable confusion over the application of Work Choices in some areas of employment, particularly for charities and community based organisations [the Australian Red Cross Society Case (1991) 27 FCR 310]. But equally it is not appropriate for the Flying Doctor Service to be categorised as no more than a trading or financial concern. It is a valuable community service and should primarily be considered in that light. For instance, I am aware that in the unreported decision of the Australian Industrial Commission in Allan v. Lifeline Newcastle and Hunter [Matter No.U2006/4687 PR 973887], it has been held that Life Line (as part of the Uniting Church) is not a constitutional corporation for the purposes of Work Choices. 5 The parties are content for the current Royal Flying Doctor Service Award to be preserved in its current form and I am satisfied that it continues to comply with the requirements of S.19 and the Review of Awards Case. I propose to note the S.19 review process as completed and the Royal Flying Doctor Service Award shall be preserved in its current terms. I make that new State award in those terms to operate effective from the beginning of the first pay period to commence on or after Thursday, 31 January, 2008. 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.