New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Kempsey Shire Council [2015] NSWIRComm 26

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Kempsey Shire Council [2015] NSWIRComm 26 Hearing dates: 1 September 2015 Decision date: 08 September 2015 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Stanton C; Newall C Decision: The parties will advise if there is a joint application for further conciliation. Otherwise, the balance of the dispute proceedings and the award proceedings will be listed for programming. Liberty to apply. Catchwords: INDUSTRIAL DISPUTE – policies and practices for rostered days off – public holiday provisions in award – award interpretation – decision reserved – related award proceedings – urgency warrants preliminary advice of interpretation ruling – vexed issues remaining – statement Legislation Cited: Industrial Relations Act 1996 Category: Procedural and other rulings Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Notifier) Kempsey Shire Council (Respondent) Representation: Counsel: I Taylor SC with J V Murphy (Applicant) A Britt(Respondent)

Solicitors: Carroll & O'Dea Lawyers (Applicant) Local Government and Shires Association of New South Wales t/as Local Government NSW (Respondent) File Number(s): IRC 879 of 2014

statement 1. On 10 December 2014, the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ('the USU') filed a notification of dispute under Pt 1 of Ch 3 of the Industrial Relations Act 1996 ('the Act') as to certain policy decisions taken by Kempsey Shire Council ('the Council') (Matter No IRC 879 of 2014) ('the industrial dispute proceedings'). Later, the USU lodged an application to vary the Local Government (State) Award 2014 ('the Award') (Matter No IRC 298 of 2015) ('the award proceedings'). The subject matter of the latter application had a relationship to the industrial dispute proceedings. 2. On 1 September 2015, the industrial dispute proceedings were listed for hearing. The proceedings in Matter No 298 of 2015 were listed for mention at the same time. In the former proceedings, the Full Bench heard the parties, pursuant to s 175 of the Act, as to the proper interpretation of various terms of the Award. That course was adopted as a step in the resolution of the industrial dispute. 3. The Full Bench regards the industrial dispute proceedings as having some urgency. Further, we see, particularly having regard to what was submitted by counsel in argument in the proceedings, that the dispute potentially has industry-wide implications. 4. Accordingly, we take the unusual step, in the interests of dealing expeditiously and effectively with that industrial dispute, of issuing a Statement which sets out our view, in broad terms, of the questions of interpretation before us and subsequent procedural steps we intend to take with very brief reasons provided to inform that subsequent process. Fuller reasons will be provided in due course. 5. The USU sought that the Full Bench answer three questions. The sharp point of those questions was the third, which asked, expressly in relation to cl 20A(iii) of the Award: "Where an accrued day off would ordinarily be rostered to fall on a day that is a public holiday, is the Respondent required to provide the employee with a day off on a different day?". 6. The answer to that question is no. Indeed, the question itself misconceives the position. 7. Clause 20A(iii) of the Award imposes no requirement on an employer to make any accommodation with respect to a rostered day off (in the sense of an accrual of a day off sustained by credits for hours worked in a previous period). It provides no more than that, if any of the public holidays prescribed by the Award fall on a day ordinarily worked by the employee, "the employee shall not have a reduction in ordinary pay". The evidence made the situation perfectly clear: no employee had suffered a reduction in ordinary pay, as defined in the Award, as a consequence of the policy adopted by the Council. Accordingly, it is not strictly necessary to address the other questions posed. 8. That answer is given, of course, in the context that the Award simply does not, in our view, recognise rostered days off. It makes no provision in regard to them. Had it been that the Award provided for accrued or rostered days off as a matter of right, the answer to the questions may very well have fallen out differently, but the Award did not do so. 9. We note that, generally speaking, we have determined to exclude as irrelevant a body of evidence and assertions of fact from the interpretation proceedings (as described in bold in Exhibit 1 in the proceedings). That material may well, however, be relevant to the wider issues in dispute. 10. That does not, however, dispose of the whole of the industrial dispute proceedings, let alone the award proceedings. Vexed issues remain. 11. On the one hand, even in the industrial dispute proceedings, the USU, in substance, sought a remedy having potential implications for the Award. The proceedings in Matter No IRC 298 of 2015 directly do so. The Award is freshly made. It derived from a significant investment of time and effort by the parties and the Commission. 12. On the other hand, the Award does not deal with rostered days off. The policies and practices now adopted by the Council present questions in the industrial dispute proceedings as to whether the circumstances under which the employees of the Council are engaged vis-à-vis rostered days off arrangements are reasonable. In the related award proceedings, a similar question arises but, in the context of s 10 of the Act, it becomes, subject to the requirements of s 17 and related issues: do the terms of the Award provide fair and reasonable conditions of employment for employees? (It might be noted, in that respect, there are provisions of the Award otherwise dealing with the relationship between accrued rights and public holidays.) 13. On one view, it might be thought appropriate for the Full Bench to bring, even on its own initiative, proceedings involving the whole industry to consider the questions underpinning the industrial dispute proceedings; questions about what might be characterised as the industrial merits of the issues raised by the dispute. That may or may not initially engage the related proceedings in Matter No IRC 298 of 2015. Alternatively, noting that the dispute is at present confined to Kempsey Shire Council, it may be appropriate to involve the parties in further conciliation on a local basis. 14. We are inclined to the latter approach at this stage. We propose to offer the parties to this dispute a limited opportunity for further conciliation, with the intention that if the matter is not resolved the proceedings should go forward to arbitration in the context of the industrial dispute proceedings or perhaps within the broader context of those proceedings and Matter No IRC 298 of 2015. The selection of either approach may extend the reach of the proceedings to the industry as a whole. 15. We grant the parties seven days from the date of this Statement to inform the Full Bench whether there is a joint position that further conciliation of the dispute in Matter No IRC 879 of 2014 should take place before a member of the Full Bench, without the fact of that conciliation being a basis to compromise the composition of the Full Bench in any further proceedings in the matter. 16. The parties' joint view – that is, whether there is an agreed position that conciliation take place or whether there is not such an agreed position – is to be conveyed to Stanton C within seven days. 17. If conciliation is then to take place it will be arranged in short order by Stanton C. If not, the Full Bench will list Matter Nos IRC 879 of 2014 and 298 of 2015 for the programming of further proceedings; again within a short time frame. 18. We grant the parties liberty to apply to the Full Bench while the above process is being pursued. We will deal expeditiously with any application made on the basis that employees are adversely affected in the interim period, that is, before the conciliation has concluded or the matter has, if that becomes necessary, arbitrated.