Industrial Relations Commission New South Wales Medium Neutral Citation: Re Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 [2017] NSWIRComm 1008 Hearing dates: 9 February 2017 Date of orders: 03 March 2017 Decision date: 03 March 2017 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM, Acting Chief Commissioner; Stanton C; Newall C Decision: Award variation made Catchwords: AWARD – need for variation to clause to provide clarity – clause amended Legislation Cited: Industrial Relations Act 1996 (NSW) ss 10, 17 Category: Principal judgment Parties: Public Service Association and Professional Officers Association Amalgamated Union of NSW – applicant Industrial Relations Secretary – respondent Representation: Mr N Keats, solicitor – applicant M J Easton (counsel) – respondent File Number(s): 2016/6216 DECISION 1. This is an application seeking that a variation be effected to the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. ('the Award'). We heard argument as to the issue of the need for variation on 9 February 2017 and on that date issued a decision in which we held that variation to the award clause was necessary to resolve possible ambiguity and to provide clarity to users of the Award. REASONS 1. Our reasons for the view we formed are, put shortly, as follows. 2. In 2014 the coverage provisions of the Award were varied by consent as a response to the introduction of the Government Sector Employment Act 2013 ('the GSE Act'), and in particular the provisions of Schedule 1 to the GSE Act as they went to award coverage. 3. The consent variation was effected by the parties with, we accept, the common objective of introducing a formulation that maintained the existing coverage of various existing awards, industrial instruments and arrangement; what might be referred to as the 'status quo' in relation to coverage. . 4. Our decision must be understood in this context, that the parties both maintain the view that some form of award provision is necessary to maintain that status quo industrial coverage. As the argument developed, and following an amendment to the formulation advanced by the applicant, the differences between the parties in practical terms resolved to one. 5. The respondent submitted, firstly, that the variation effected in 2014 was sufficient to maintain the status quo in relation to coverage, and, secondly, that there was a danger that any more prescriptive provision would inadvertently omit necessary inclusions or exclusions. 6. We are not satisfied that the existing formulation is sufficient to reflect the parties' intentions, the maintenance of the status quo. The present formulation relies on an understanding of the pre-existing circumstances, and the Award will not always be read by persons who have that knowledge. Accepting that, as the respondent advanced, there are difficulties in drafting a more precise set of interaction rules as an award clause, we are nevertheless of the view that an award clause providing clear interaction rules is necessary to allow the Award to function to the greatest extent possible as a stand-alone industrial instrument. 7. Further, we think there is force in the submission advanced by the applicant that the coverage provisions should be contained in an award of the Commission that is enforceable in its own right. 8. In all of this we do not propose to depart from the parties' original intention, to maintain the status quo, as we have used that term in this decision, in relation to industrial coverage. 9. We directed the parties to draw up short minutes providing the words of the clause to be varied. On 27 February, the parties advised the Commission that they were not able to agree on the terms necessary to give effect to the Full Bench decision. Accordingly, that direction to the parties was revoked. Disposition of application and variation to Award 1. The Commission has determined the appropriate form of the amended clause. Clause 6 of the Award is to be deleted in whole and replaced with a new Clause 6, including the notation thereto, which appears at Schedule A to this decision. 2. The variation to the Award takes effect on and from today's date, 3 March 2017. SCHEDULE 'A' 6. Coverage 1. The provisions of this award shall, subject to cl 6(b) below, apply to all non-executive public service employees as defined in the Government Sector Employment Act, 2013 employed in Departments, Public Service executive agencies related to Departments, and separate Public Service agencies, listed in Schedule 1 to the Government Sector Employment Act, 2013. 2. Where another industrial instrument or arrangement applies to a group of employees covered by this Award the following interaction rules apply: 1. If the other industrial instrument or arrangement expressly displaces the entirety of this Award then this Award shall have no application to those employees; 2. If the other industrial instrument or arrangement expressly displaces one or more provisions of this Award then: a. this Award shall not apply to those employees covered by the other instrument or arrangement in relation to those provisions, b. but the balance of this Award shall apply to those employees; and 1. If the other industrial instrument or arrangement comprehensively determines conditions of employment for a group of employees then this Award shall have no application in relation to that group of employees; 2. If the other industrial instrument or arrangement comprehensively determines a particular class of conditions of employment for a group of employees, then this Award shall have no application in relation to that group of employees in relation to that class of conditions; 3. If none of subclauses 6(b)(i)-(iv) apply, and the other industrial instrument or arrangement is silent as to its interaction with this Award, then: a. if the application of the other industrial instrument or arrangement is inconsistent with the application of this Award, the other industrial instrument or arrangement applies to the extent of the inconsistency; otherwise b. this Award applies. 1. Any officer, Departmental temporary employee and casual employee who, as at 23 February 2014, was employed in a Department listed in Schedule 1, Part 1, of the Public Sector Employment and Management Act, 2002 and who was covered by this award on that date will continue to be covered by this award. NOTATION: This clause was amended in 2014 and again in 2017 with the agreed intention of the parties to maintain the status quo of industrial coverage, by award, other industrial instrument or arrangement, following the commencement of the Government Sector Employment Act 2013 on 24 February 2014. 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. Decision last updated: 03 March 2017